[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40792-40813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16231]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69902; File No. SR-FINRA-2013-025]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change To Adopt 
Rules Regarding Supervision in the Consolidated FINRA Rulebook

July 1, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on June 21, 2013, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been substantially prepared by 
FINRA. The Commission is publishing this notice to solicit comments on 
the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.

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[[Page 40793]]

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to adopt the consolidated FINRA supervision 
rules. Specifically, the proposed rule change would (1) adopt FINRA 
Rules 3110 (Supervision) and 3120 (Supervisory Control System) to 
largely replace NASD Rules 3010 (Supervision) and 3012 (Supervisory 
Control System), respectively; (2) incorporate into FINRA Rule 3110 and 
its supplementary material the requirements of NASD IM-1000-4 (Branch 
Offices and Offices of Supervisory Jurisdiction), NASD IM-3010-1 
(Standards for Reasonable Review), Incorporated NYSE Rule 401A 
(Customer Complaints), and Incorporated NYSE Rule 342.21 (Trade Review 
and Investigation); (3) replace NASD Rule 3010(b)(2) (often referred to 
as the ``Taping Rule'') with new FINRA Rule 3170 (Tape Recording of 
Registered Persons by Certain Firms); (4) replace NASD Rule 3110(i) 
(Holding of Customer Mail) with new FINRA Rule 3150 (Holding of 
Customer Mail); and (5) delete the following Incorporated NYSE Rules 
and NYSE Rule Interpretations: (i) NYSE Rule 342 (Offices--Approval, 
Supervision and Control) and related NYSE Rule Interpretations; (ii) 
NYSE Rule 343 (Offices--Sole Tenancy, and Hours) and related NYSE Rule 
Interpretations; (iii) NYSE Rule 351(e) (Reporting Requirements) and 
NYSE Rule Interpretation 351(e)/01 (Reports of Investigation); (iv) 
NYSE Rule 354 (Reports to Control Persons); and (v) NYSE Rule 401 
(Business Conduct).
    The text of the proposed rule change is available on FINRA's Web 
site at http://www.finra.org, at the principal office of FINRA and at 
the Commission's Public Reference Room.

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

    In its filing with the Commission, FINRA included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. FINRA has prepared summaries, set forth in sections A, 
B, and C below, of the most significant aspects of such statements.

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

1. Purpose
    As part of the process of developing a new consolidated rulebook 
(``Consolidated FINRA Rulebook''),\3\ FINRA is proposing to adopt new 
FINRA Rules 3110 (Supervision) and 3120 (Supervisory Control System) 
and to delete NASD Rule 3010 (Supervision) (with the exception of 
3010(e) (Qualifications Investigated) and 3010(f) (Applicant's 
Responsibility)) and NASD Rule 3012 (Supervisory Control System), on 
which they are largely based. The proposed rule change also would 
delete Incorporated NYSE Rule 342 and much of its supplementary 
material and interpretations as they are, in main part, either 
duplicative of, or do not align with, the proposed supervision 
requirements. The proposed rule change, however, would incorporate--on 
a tiered basis--provisions from Incorporated NYSE Rule 342. The details 
of the proposed rule change are described below.
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    \3\ The current FINRA rulebook consists of: (1) FINRA Rules; (2) 
NASD Rules; and (3) rules incorporated from the NYSE (``Incorporated 
NYSE Rules'') (together, the NASD Rules and Incorporated NYSE Rules 
are referred to as the ``Transitional Rulebook''). While the NASD 
Rules generally apply to all FINRA members, the Incorporated NYSE 
Rules apply only to those members of FINRA that are also members of 
the NYSE (``Dual Members''). The FINRA Rules apply to all FINRA 
members, unless such rules have a more limited application by their 
terms. For more information about the rulebook consolidation 
process, see Information Notice, March 12, 2008 (Rulebook 
Consolidation Process).
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(1) Proposed FINRA Rule 3110 (Supervision)
    Proposed FINRA Rule 3110 is based primarily on existing 
requirements in NASD Rule 3010 and Incorporated NYSE Rule 342 relating 
to, among other things, supervisory systems, written procedures, 
internal inspections, and review of correspondence. Proposed FINRA Rule 
3110 also would incorporate provisions in other NASD rules that pertain 
to supervision, including NASD Rule 3012.
(A) Proposed FINRA Rule 3110(a) (Supervisory System)
    Proposed FINRA Rule 3110(a) would require a member to have a 
supervisory system for the activities of its associated persons that is 
reasonably designed to achieve compliance with the applicable 
securities laws and regulations and FINRA and Municipal Securities 
Rulemaking Board (``MSRB'') rules. The proposed rule provision is 
substantially similar to NASD Rule 3010(a) except for two revisions. 
First, proposed FINRA Rule 3110(a) would refer only to associated 
persons instead of the current reference in NASD Rule 3010(a) to each 
``registered representative, registered principal, and other associated 
person.'' Second, proposed FINRA Rule 3110(a) would require a member's 
supervisory system to be reasonably designed to achieve compliance with 
MSRB rules, which NASD Rule 3010(a) does not explicitly reference.\4\
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    \4\ In this regard, SEC staff has confirmed FINRA staff's view 
that a violation of the MSRB rules also would be a violation of the 
federal securities laws, as it would constitute a violation of SEA 
Section 15B(c)(1). See Letter from James L. Eastman, Chief Counsel 
and Associate Director, Division of Trading and Markets, SEC, to 
Patrice M. Gliniecki, Senior Vice President and Deputy General 
Counsel, FINRA (March 17, 2009).
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(i) Proposed FINRA Rule 3110(a)(1): Establishment and Maintenance of 
Written Procedures
    Proposed FINRA Rule 3110(a)(1), which is identical to NASD Rule 
3010(a)(1), would require a member's supervisory system to include the 
establishment and maintenance of written procedures.
(ii) Proposed FINRA Rule 3110(a)(2): Designated Principal
    Proposed FINRA Rule 3110(a)(2), which is identical to NASD Rule 
3010(a)(2), would require a member's supervisory system to include the 
designation of an appropriately registered principal(s) with authority 
to carry out the supervisory responsibilities for each type of business 
in which the member engages for which registration as a broker-dealer 
is required.
(iii) Proposed FINRA Rule 3110(a)(3) and Proposed Supplementary 
Material .01-.02
    Proposed FINRA Rule 3110(a)(3) would require the registration and 
designation as a branch office or an office of supervisory jurisdiction 
(``OSJ'') of each location, including the main office, as those terms 
are defined in the proposed rule. Proposed FINRA Rule 3110(a)(3) is 
based on similar provisions in NASD Rule 3010(a)(3). In addition, the 
proposed rule provision and proposed Supplementary Material .01 
(Registration of Main Office) incorporate the requirement in NASD IM-
1000-4 (Branch Offices and Offices of Supervisory Jurisdiction) that 
all branch offices and OSJs must be registered as either a branch 
office or OSJ, respectively. FINRA is deleting NASD IM-1000-4 as part 
of this proposed rule change.

[[Page 40794]]

    In addition, the proposed rule change moves, with no substantive 
changes, the provisions in NASD Rule 3010(a)(3) setting forth factors a 
member should consider in designating additional locations as OSJs into 
proposed Supplementary Material .02 (Designation of Additional OSJs).
(iv) Proposed FINRA Rule 3110(a)(4) and Proposed Supplementary Material 
.03-.04
    Proposed FINRA Rule 3110(a)(4) would require a member to designate 
one or more appropriately registered principals in each OSJ and one or 
more appropriately registered representatives or principals in each 
non-OSJ branch office with authority to carry out the supervisory 
responsibilities assigned to that office by the member. This proposed 
provision would replace the nearly identical provision in NASD Rule 
3010(a)(4) with a minor editorial change to delete the phrase 
``including the main office,'' from the rule text.
    Supplementary Material .03 (One-Person OSJs) codifies existing 
guidance on the supervision of one-person OSJs. Specifically, the 
proposed supplementary material would clarify the core concept that the 
registered principal designated to carry out supervisory 
responsibilities assigned to such an OSJ (``on-site principal'') cannot 
supervise his or her own activities if such principal is authorized to 
engage in business activities other than the supervision of associated 
persons or other offices as enumerated in proposed FINRA Rule 
3110(e)(1)(D) through (G). Proposed Supplementary Material .03 also 
would provide that, in such instances, the on-site principal must be 
under the effective supervision and control of another appropriately 
registered principal (``senior principal''). The senior principal is 
responsible for supervising the activities of the on-site principal at 
such office and must conduct on-site supervision of such OSJ on a 
regular periodic schedule determined by the member. The proposed 
supplementary material would require a member to consider, among other 
factors, the nature and complexity of the securities activities for 
which the location is responsible, the nature and extent of contact 
with customers, and the disciplinary history of the on-site principal 
in determining this schedule.
    Proposed Supplementary Material .04 (Supervision of Multiple OSJs 
by a Single Principal) would clarify the requirement in proposed Rule 
3110(a)(4) to designate an on-site principal in each OSJ with authority 
to carry out the supervisory responsibilities assigned to that office. 
Such on-site principal must have a physical presence, on a regular and 
routine basis, at the OSJ for which the principal has supervisory 
responsibilities. The proposed supplementary material would establish a 
general presumption that a principal will not be assigned to supervise 
more than one OSJ. If a member determines it is necessary to designate 
and assign a single appropriately registered principal to supervise 
more than one OSJ, the proposed supplementary material would require 
the member to take into consideration, among others, the following 
factors:
     Whether the principal is qualified by virtue of experience 
and training to supervise the activities and associated persons in each 
location;
     Whether the principal has the capacity and time to 
supervise the activities and associated persons in each location;
     Whether the principal is a producing registered 
representative;
     Whether the OSJ locations are in sufficiently close 
proximity to ensure that the principal is physically present at each 
location on a regular and routine basis; and
     The nature of activities at each location, including size 
and number of associated persons, scope of business activities, nature 
and complexity of products and services offered, volume of business 
done, the disciplinary history of persons assigned to such locations, 
and any other indicators of irregularities or misconduct.
    Where a member determines to assign one principal to supervise more 
than one OSJ, the member must document the factors it used to determine 
why the member considers such supervisory structure to be reasonable. 
There is a further general presumption that a determination by a member 
to assign one principal to supervise more than two OSJs is 
unreasonable. If a member determines to designate and assign one 
principal to supervise more than two OSJs, the proposed supplementary 
material would provide that such determination will be subject to 
greater scrutiny, and the member will have a greater burden to evidence 
the reasonableness of such structure.
(v) Proposed FINRA Rule 3110(a)(5) through (7) and Proposed 
Supplementary Material .05
    Proposed FINRA Rule 3110(a)(5) would require that each registered 
person be assigned to an appropriately registered representative(s) or 
principal(s) who is responsible for supervising that person's 
activities. Proposed FINRA Rule 3110(a)(6) would require a member to 
use reasonable efforts to determine that all supervisory personnel have 
the necessary experience or training to be qualified to carry out their 
assigned responsibilities. Proposed FINRA Rule 3110(a)(7) would require 
each registered representative and registered principal to participate, 
at least once each year, in an interview or meeting at which compliance 
matters relevant to the particular representative or principal are 
discussed. These proposed provisions would replace the nearly identical 
provisions in NASD Rule 3010(a)(5) through (7) with only minor 
editorial changes.
    Proposed Supplementary Material .05 (Annual Compliance Meeting) 
would codify existing guidance that a member is not required to conduct 
in-person meetings with each registered person or groups of registered 
persons to comply with the annual compliance meetings required by 
proposed FINRA Rule 3110(a)(7).\5\ However, a member that chooses to 
conduct meetings using other methods (e.g., on-demand webcast or 
course, video conference, interactive classroom setting, telephone, or 
other electronic means) must ensure, at a minimum, that each registered 
person attends the entire meeting (e.g., an on-demand annual compliance 
webcast would require each registered person to use a unique user ID 
and password to gain access and use a technology platform to track the 
time spent on the webcast, provide click-as-you-go confirmation, and 
have an attestation of completion at the end of a webcast) and is able 
to ask questions regarding the presentation and receive answers in a 
timely fashion (e.g., an on-demand annual compliance webcast that 
allows registered persons to ask questions via an email to a presenter 
or a centralized address or via a telephone hotline and receive timely 
responses directly or view such responses on the member's intranet 
site).
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    \5\ See Notices to Members 99-45 (June 1999) and 05-44 (June 
2005); see also Letter from Afshin Atabaki, FINRA, to Evan Charkes, 
Citigroup Global Markets, Inc., dated November 30, 2006 (members may 
use on-demand webcast technology to satisfy the annual compliance 
meeting requirement, subject to specified safeguards and 
conditions); letter from Afshin Atabaki, FINRA, to S. Kendrick Dunn, 
Pacific Select Distributors, Inc., dated February 5, 2013 (members 
may use on-demand course without voice narration to satisfy annual 
compliance meeting requirement, subject to specified safeguards and 
conditions).
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(B) Proposed FINRA Rule 3110(b) (Written Procedures)
    FINRA proposes to consolidate various provisions and rules that 
currently require written procedures into proposed FINRA Rule 3110(b),

[[Page 40795]]

including provisions from NASD Rule 3010(d) relating to the supervision 
and review of registered representatives' transactions and 
correspondence and Incorporated NYSE Rule 401A (Customer Complaints) 
relating to the review of customer complaints. In addition, proposed 
supplementary material, which is discussed in detail below, would 
codify and expand guidance in these areas.
(i) Proposed FINRA Rule 3110(b)(1) (General Requirements)
    Proposed FINRA Rule 3110(b)(1) would require a member to establish, 
maintain, and enforce written procedures to supervise the types of 
business in which it engages and the activities of its associated 
persons that are reasonably designed to achieve compliance with 
applicable securities laws and regulations, FINRA rules, and MSRB 
rules. The proposed rule provision is substantially similar to NASD 
Rule 3010(b)(1) except for two revisions that mirror changes in 
proposed FINRA Rule 3110(a). First, proposed FINRA Rule 3110(b)(1) 
would refer only to associated persons instead of the current reference 
in NASD Rule 3010(b)(1) to ``registered representatives, registered 
principals, and other associated persons.'' Second, FINRA Rule 
3110(b)(1) would require a member's written supervisory procedures to 
be reasonably designed to achieve compliance with MSRB rules, which 
NASD Rule 3010(b)(1) does not explicitly reference.\6\
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    \6\ See supra note 3.
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(ii) Proposed FINRA Rule 3110(b)(2) (Review of Member's Investment 
Banking and Securities Business) and Proposed Supplementary Material 
.06
    FINRA is retaining the provision in NASD Rule 3010(d)(1) requiring 
principal review, evidenced in writing, of all transactions, but is 
relocating the provision to proposed FINRA Rule 3110(b)(2). FINRA is 
also proposing to amend the provision to clarify that such review would 
include all transactions relating to the member's investment banking or 
securities business. Proposed Supplementary Material .06 (Risk-based 
Review of Member's Investment Banking and Securities Business) would 
permit a member to use a risk-based system to review these 
transactions.
(iii) Proposed FINRA Rule 3110(b)(3)
    FINRA is preserving this provision for future rulemaking.\7\
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    \7\ As noted in Regulatory Notice 08-24 (May 2008), FINRA 
proposed to delete NASD Rule 3040 (Private Securities Transactions 
of an Associated Person) and replace it with FINRA Rule 3110(b)(3) 
(Supervision of Outside Securities Activities) and proposed 
Supplementary Material .07 (Reliance on Bank or Affiliated Entity to 
Supervise Dual Employees). FINRA, however, has determined to address 
NASD Rule 3040 as a separate proposal.
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(iv) Proposed FINRA Rule 3110(b)(4) (Review of Correspondence and 
Internal Communications) and Proposed Supplementary Material .07-.10
    Proposed FINRA Rule 3110(b)(4) would generally incorporate the 
substance of NASD Rule 3010(d)(2) (Review of Correspondence) requiring 
members to have supervisory procedures for the review of 
correspondence. In addition, the proposed provision and proposed 
related supplementary material would incorporate existing guidance 
regarding the supervision of electronic communications in Regulatory 
Notice 07-59 (December 2007).
    Specifically, proposed FINRA Rule 3110(b)(4) would require that a 
member have supervisory procedures for the review of the member's 
incoming and outgoing written (including electronic) correspondence 
with the public and internal communications that relate to its 
investment banking or securities business. In particular, the proposed 
rule would require a member to have supervisory procedures requiring 
the member's review of incoming and outgoing written (including 
electronic) correspondence with the public to properly identify and 
handle in accordance with firm procedures, customer complaints, 
instructions, funds and securities, and communications that are of a 
subject matter that require review under FINRA and MSRB rules and 
federal securities laws. In addition, proposed FINRA Rule 3110(b)(4) 
would require a member to have supervisory procedures to review 
internal communications to properly identify communications that are of 
a subject matter that require review under FINRA and MSRB rules and 
federal securities laws. Those communications include (without 
limitation):
     Communications between non-research and research 
departments concerning a research report's contents (NASD Rule 
2711(b)(3) and Incorporated NYSE Rule 472(b)(3));
     Certain communications with the public that require a 
principal's pre-approval (FINRA Rule 2210); \8\
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    \8\ See Securities Exchange Act Release No. 66681 (March 29, 
2012), 77 FR 20452 (April 4, 2012) (Notice of Filing of Amendment 
No. 3 and Order Granting Accelerated Approval of SR-FINRA-2011-035); 
see also Regulatory Notice 12-29 (June 2012) (SEC Approves New Rules 
Governing Communications With the Public--Effective Date: February 
4, 2013).
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     The identification and reporting to FINRA of customer 
complaints (FINRA Rule 4530); \9\ and
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    \9\ With respect to customer complaints, as detailed further 
below, proposed FINRA Rule 3110(b)(5) also would affirmatively 
require members to capture, acknowledge, and respond to all written 
(including electronic) customer complaints.
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     The identification and prior written approval of changes 
in account name(s) (including related accounts) or designation(s) 
(including error accounts) regarding customer orders (FINRA Rule 4515).
    Proposed Supplementary Material .07 (Risk-based Review of 
Correspondence and Internal Communications), however, would require a 
member, by employing risk-based principles, to decide the extent to 
which additional policies and procedures for the review of incoming and 
outgoing written (including electronic) correspondence with the public 
that fall outside of the subject matters listed in proposed FINRA Rule 
3110(b)(4) are necessary for its business and structure. If a member's 
procedures do not require that all correspondence be reviewed before 
use or distribution, the procedures must provide for:
     The education and training of associated persons regarding 
the firm's procedures governing correspondence;
     The documentation of such education and training; and
     Surveillance and follow-up to ensure that such procedures 
are implemented and followed.
    In addition, proposed Supplementary Material .07 would require a 
member, by employing risk-based principles, to decide the extent to 
which additional policies and procedures for the review of internal 
communications that are not of a subject matter that require review 
under FINRA and MSRB rules and federal securities laws are necessary 
for its business and structure.
    Proposed FINRA Rule 3110(b)(4) also would require that a registered 
principal review correspondence with the public and internal 
communications and evidence those reviews in writing (either 
electronically or on paper). Proposed Supplementary Material .09 
(Delegation of Correspondence and Internal Communication Review 
Functions) would allow a supervisor/principal to delegate review 
functions to an unregistered person; however, the supervisor/principal 
remains ultimately responsible for the performance of all necessary 
supervisory reviews.
    Proposed Supplementary Material .08 (Evidence of Review of 
Correspondence and Internal Communications) would codify existing FINRA 
guidance that merely opening a communication is not

[[Page 40796]]

sufficient review.\10\ Instead, a member must identify what 
communication was reviewed, the identity of the reviewer, the date of 
review, and the actions taken by the member as a result of any 
significant regulatory issues identified during the review.
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    \10\ See Regulatory Notice 07-59 (December 2007).
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    Finally, proposed Supplementary Material .10 (Retention of 
Correspondence and Internal Communications), which is largely based on 
the requirements in NASD Rule 3010(d)(3) (Retention of Correspondence), 
would require a member to retain its internal communications and 
correspondence of associated persons relating to the member's 
investment banking or securities business in accordance with SEA Rule 
17a-4(b) \11\ and make those records available to FINRA upon request.
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    \11\ 17 CFR 240.17a-4(b).
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    (v) Proposed FINRA Rule 3110(b)(5) (Review of Customer Complaints)
    Incorporated NYSE Rule 401A (Customer Complaints) requires firms to 
acknowledge and respond to all customer complaints subject to the 
reporting requirements of Incorporated NYSE Rule 351(d) (Reporting 
Requirements). Previously, this meant that firms had to acknowledge and 
respond to both written and oral customer complaints. However, as part 
of the effort to harmonize the NASD and NYSE rules in the interim 
period before completion of the Consolidated FINRA Rulebook, 
Incorporated NYSE Rule 351(d) was amended to limit the definition of 
``customer complaint'' to include only written complaints, thereby 
making the definition substantially similar to that in NASD Rule 
3070(c) (Reporting Requirements).\12\
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    \12\ FINRA adopted FINRA Rule 4530 (Reporting Requirements) to 
replace NASD Rule 3070 and comparable provisions in Incorporated 
NYSE Rule 351. See Securities Exchange Act Release No. 63260 
(November 5, 2010), 75 FR 69508 (November 12, 2010) (Notice of 
Filing of Amendments No. 1 and 2 and Order Granting Accelerated 
Approval of File No. SR-FINRA-2010-034). FINRA Rule 4530 became 
effective on July 1, 2011. See Regulatory Notice 11-06 (February 
2011).
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    Proposed FINRA Rule 3110(b)(5), which would require a member's 
supervisory procedures to include procedures to capture, acknowledge, 
and respond to all written (including electronic) customer complaints, 
essentially incorporates the customer complaint requirement in 
Incorporated NYSE Rule 401A, including the limitation on including only 
written (including electronic) customer complaints. FINRA believes that 
oral complaints are difficult to capture and assess, and they raise 
competing views as to the substance of the complaint being alleged. 
Consequently, oral complaints do not lend themselves as effectively to 
a review program as written complaints, which are more readily 
documented and retained. However, FINRA reminds members that the 
failure to address any customer complaint, written or oral, may be a 
violation of FINRA Rule 2010 (Standards of Commercial Honor and 
Principles of Trade).
    (vi) Proposed FINRA Rule 3110(b)(6) (Documentation and Supervision 
of Supervisory Personnel) and Proposed Supplementary Material .11
    Proposed FINRA Rule 3110(b)(6) is based largely on existing 
provisions in NASD Rule 3010(b)(3) requiring a member's supervisory 
procedures to set forth the member's supervisory system and to include 
a record of the member's supervisory personnel with such details as 
titles, registration status, locations, and responsibilities. The 
proposed rule also would include a new provision, proposed FINRA Rule 
3110(b)(6)(C), that would address potential abuses in connection with 
the supervision of supervisors. This provision would replace NASD Rule 
3012(a)(2) concerning the supervision of a producing manager's customer 
account activity and the requirement to impose heightened supervision 
when any producing manager's revenues rise above a specific threshold.
    Specifically, the proposed provision would require members to have 
procedures prohibiting associated persons who perform a supervisory 
function from:
     supervising their own activities; and
     reporting to, or having their compensation or continued 
employment determined by, someone they are supervising.
    The proposal, however, would create an exception for a member that 
determines, with respect to any of its supervisory personnel, that 
compliance with either of these conditions is not possible because of 
the member's size or a supervisory personnel's position within the 
firm. A member relying on this exception must document the factors the 
member used to reach such determination and how the supervisory 
arrangement with respect to such supervisory personnel otherwise 
comports with proposed FINRA Rule 3110(a). Proposed Supplementary 
Material .11 (Supervision of Supervisory Personnel) would explain that 
a member generally will need to rely on this exception only because it 
is a sole proprietor in a single-person firm or where a supervisor 
holds a very senior executive position within the firm. Members relying 
on this exception would not be required to notify FINRA of their 
reliance.
    Proposed FINRA Rule 3110(b)(6)(D) would require a member to have 
procedures to prevent the standards of supervision required pursuant to 
proposed FINRA Rule 3110(a) from being reduced in any manner due to any 
conflicts of interest that may be present with respect to the 
associated person being supervised, such as the person's position, the 
amount of revenue such person generates for the firm, or any 
compensation that the associated person conducting the supervision may 
derive from the associated person being supervised. There is no 
exception from this provision.
    (vii) Proposed FINRA Rule 3110(b)(7) (Maintenance of Written 
Supervisory Procedures) and Proposed Supplementary Material .12
    Proposed FINRA Rule 3110(b)(7), which would replace similar 
requirements in NASD Rule 3010(b)(4), would require a member to keep 
and maintain a copy of the member's written supervisory procedures, or 
the relevant portions thereof, at each OSJ and at each location where 
supervisory activities are conducted on behalf of the member. The 
member must also promptly amend its written supervisory procedures to 
reflect changes in applicable securities laws or regulations, including 
FINRA and MSRB rules, and as changes occur in its supervisory system. 
In addition, each member must promptly communicate its written 
supervisory procedures and amendments to all associated persons to whom 
such written supervisory procedures and amendments are relevant based 
on their activities and responsibilities.
    Proposed Supplementary Material .12 (Use of Electronic Media to 
Communicate Written Supervisory Procedures) would permit a member to 
satisfy its obligation to communicate its written supervisory 
procedures, and any amendments thereto, using electronic media, 
provided that: (1) The written supervisory procedures have been 
promptly communicated to, and are readily accessible by, all associated 
persons to whom such supervisory procedures apply based on their 
activities and responsibilities through, for example, the member's 
intranet system; (2) all amendments to the written supervisory 
procedures are promptly posted to the member's electronic media; (3) 
associated persons are notified that amendments relevant to their 
activities and responsibilities have been made to the written 
supervisory

[[Page 40797]]

procedures; (4) the member has reasonable procedures to monitor and 
maintain the security of the material posted to ensure that it cannot 
be altered by unauthorized persons; and (5) the member retains current 
and prior versions of its written supervisory procedures in compliance 
with the applicable record retention requirements of SEA Rule 17a-
4(e)(7).\13\
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    \13\ 17 CFR 240.17a-4(e)(7).
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    (C) Proposed FINRA Rule 3110(c) (Internal Inspections) and Proposed 
Supplementary Material .13-.15
    Proposed FINRA Rule 3110(c)(1), based largely on NASD Rule 
3010(c)(1), would retain the existing requirements for each member to 
review, at least annually, the businesses in which it engages and 
inspect each office on a specified schedule. That inspection schedule 
would require that OSJs and supervisory branch offices be inspected at 
least annually, non-supervisory branch offices be inspected at least 
every three years, and non-branch locations be inspected on a regular 
periodic schedule. The proposed rule provision also would clarify that 
the term ``annually,'' as used in proposed FINRA Rule 3110(c), means on 
a calendar-year basis.
    Proposed Supplementary Material .14 (General Presumption of Three-
Year Limit for Periodic Inspection Schedules) would provide a general 
presumption that a non-branch location will be inspected at least every 
three years, even in the absence of any indicators of irregularities or 
misconduct (i.e., ``red flags''). If a member establishes a periodic 
inspection schedule longer than three years, the member must document 
in its written supervisory and inspection procedures the factors used 
in determining that a longer periodic inspection cycle is appropriate. 
As with NASD Rule 3010(c), proposed FINRA Rule 3110(c) would require a 
member to retain a written record of each review and inspection, reduce 
a location's inspection to a written report, and keep each inspection 
report on file either for a minimum of three years or, if the 
location's inspection schedule is longer than three years, until the 
next inspection report has been written.
    The proposal revises NASD Rule 3010(c)(3)'s provisions prohibiting 
certain persons from conducting office inspections to make the 
provisions less prescriptive. To that end, the proposed rule would 
eliminate the heightened office inspection requirements members must 
implement if the person conducting the office inspection either reports 
to the branch office manager's supervisor or works in an office 
supervised by the branch manager's supervisor, and the branch office 
manager generates 20% or more of the revenue of the business units 
supervised by the branch office manager's supervisor. The proposal 
would replace these requirements with provisions requiring a member to:
     prevent the inspection standards required pursuant to 
proposed FINRA Rule 3110(c)(1) from being reduced in any manner due to 
any conflicts of interest that may be present, including but not 
limited to, economic, commercial, or financial interests in the 
associated persons and businesses being inspected; and
     ensure that the person conducting an inspection pursuant 
to proposed FINRA Rule 3110(c)(1) is not an associated person assigned 
to the location or is not directly or indirectly supervised by, or 
otherwise reporting to, an associated person assigned to the location.
    A member that determines it cannot comply with this last condition 
due to its size or business model must document in the inspection 
report both the factors the member used to make its determination and 
how the inspection otherwise comports with proposed FINRA Rule 
3110(c)(1). Proposed Supplementary Material .15 (Exception to Persons 
Prohibited from Conducting Inspections) would provide that such a 
determination generally will arise only in instances where the member 
has only one office or the member has a business model where small or 
single-person offices report directly to an OSJ manager who is also 
considered the offices' branch office manager. The proposal also 
generally would retain as Supplementary Material .13 (Standards for 
Reasonable Review) the content of NASD IM-3010-1 (Standards for 
Reasonable Review) relating to standards for the reasonable review of 
offices.\14\
---------------------------------------------------------------------------

    \14\ See also Incorporated NYSE Rule 342.10 (Definition of 
Branch Office).
---------------------------------------------------------------------------

    In addition, the proposal would relocate into proposed FINRA Rule 
3110(c)(2) provisions in NASD Rule 3012 regarding the review and 
monitoring of specified activities, such as transmittals of funds and 
securities and customer changes of address and investment objectives. 
Specifically, proposed FINRA Rule 3110(c)(2)(A) would require a member 
to test and verify a location's procedures for: (1) Safeguarding of 
customer funds and securities; (2) maintaining books and records; (3) 
supervision of supervisory personnel; (4) transmittals of funds (e.g., 
wires or checks, etc.) or securities from customers to third party 
accounts, from customer accounts to outside entities (e.g., banks, 
investment companies, etc.), from customer accounts to locations other 
than a customer's primary residence (e.g., post office box, ``in care 
of'' accounts, alternate address, etc.), and between customers and 
registered representatives, including the hand-delivery of checks; and 
(5) changes of customer account information, including address and 
investment objective changes and validation of such changes. With 
respect to the transmittal of funds or securities from customers to 
third party accounts, the proposal would eliminate NASD Rule 3012's 
parenthetical text (``i.e., a transmittal that would result in a change 
in beneficial ownership)'' to clarify that all transmittals to an 
account where a customer on the original account is not a named account 
holder are included.
    Proposed FINRA Rule 3110(c)(2)(B) would require for transmittals of 
funds or securities a means or method of customer confirmation, 
notification, or follow-up that can be documented but would make clear 
that members may use risk-based methods to determine the authenticity 
of the transmittal instructions. Proposed FINRA Rule 3110(c)(2)(C) also 
would require for changes of customer account information a means or 
method of customer confirmation, notification or follow-up that can be 
documented and that complies with SEA Rules 17a-3(a)(17)(i)(B)(2) \15\ 
and 17a-3(a)(17)(i)(B)(3).\16\ Finally, proposed FINRA Rule 
3110(c)(2)(D) would make clear that if a location being inspected does 
not engage in all of the activities listed above, the member must 
identify those activities in the location's written inspection report 
and document in the report that supervisory policies and procedures 
must be in place at that location before the location can engage in 
them.
---------------------------------------------------------------------------

    \15\ 17 CFR 240.17a-3(a)(17)(i)(B)(2) (changes in the name or 
address of customer or owner).
    \16\ 17 CFR 240.17a-3(a)(17)(i)(B)(3) (changes in an account's 
investment objectives).
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    (D) Proposed FINRA Rule 3110(d) (Transaction Review and 
Investigation)
    Section 15(g) of the Act,\17\ adopted as part of the Insider 
Trading and Securities Fraud Enforcement Act of 1988 (``ITSFEA''),\18\ 
requires every registered broker or dealer to establish, maintain, and 
enforce written policies and procedures reasonably designed to prevent 
the misuse of material, non-public information by the broker or

[[Page 40798]]

dealer or any associated person of the broker or dealer. Incorporated 
NYSE Rule 342.21 sets forth specific supervisory procedures for 
compliance with ITSFEA by requiring firms to review trades in NYSE-
listed securities and related financial instruments that are effected 
for the member's account or for the accounts of the member's employees 
and family members. Incorporated NYSE Rule 342.21 also requires members 
to promptly conduct an internal investigation into any trade the firm 
identifies that may have violated insider trading laws or rules.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78o(g).
    \18\ See Insider Trading and Securities Fraud Enforcement Act of 
1988, Pub. L. No. 100-704, 102 Stat. 4677.
---------------------------------------------------------------------------

    FINRA is proposing FINRA Rule 3110(d) to incorporate into the 
Consolidated FINRA Rulebook the provisions of Incorporated NYSE Rule 
342.21, with some modifications, and extend the requirement beyond 
NYSE-listed securities and related financial instruments to cover all 
securities. Specifically, proposed FINRA Rule 3110(d)(1) would require 
a member to have supervisory procedures for the review of securities 
transactions that are effected for the account(s) of the member or 
associated persons of the member as well as any other ``covered 
account'' \19\ to identify trades that may violate the provisions of 
the Act, the rules thereunder, or FINRA rules prohibiting insider 
trading and manipulative and deceptive devices. The proposed rule 
change also would require members to promptly conduct an internal 
investigation into any identified trades to determine whether a 
violation of those laws or rules has occurred.
---------------------------------------------------------------------------

    \19\ Proposed FINRA Rule 3110(d)(3)(A) defines the term 
``covered account'' to include (i) any account held by the spouse, 
domestic partner, child, parent, sibling, son-in-law, daughter-in-
law, father-in-law, or mother-in-law of a person associated with the 
member where such account is introduced or carried by the member; 
(ii) any account introduced or carried by the member in which a 
person associated with the member has a beneficial interest; (iii) 
any account introduced or carried by the member over which a person 
associated with the member has the authority to make investment 
decisions; and (iv) any account of a person associated with a member 
that is disclosed to the member pursuant to NASD Rule 3050 or NYSE 
Rule 407, as applicable.
---------------------------------------------------------------------------

    Proposed FINRA Rule 3110(d)(2) would require any member that 
engages in ``investment banking services,'' \20\ to provide reports to 
FINRA regarding such investigations. These members would be required to 
make written reports to FINRA within ten business days of the end of 
each calendar quarter describing each internal investigation initiated 
in the previous calendar quarter, including the member's identity, the 
commencement date of each internal investigation, the status of each 
open internal investigation, the resolution of any internal 
investigation reached during the previous calendar quarter, and with 
respect to each internal investigation, the identity of the security, 
trades, accounts, member's associated persons or family members of such 
associated person holding a covered account, under review, and a copy 
of the member's policies and procedures required by proposed FINRA Rule 
3110(d)(1)(A). If a member subject to this requirement did not have an 
open internal investigation or either initiate or complete an internal 
investigation during a particular calendar quarter, the member would 
not be required to submit a report for that quarter.
---------------------------------------------------------------------------

    \20\ Proposed FINRA Rule 3110(d)(3)(B) defines the term 
``investment banking services'' to include, without limitation, 
acting as an underwriter, participating in a selling group in an 
offering for the issuer, or otherwise acting in furtherance of a 
public offering of the issuer; acting as a financial adviser in a 
merger or acquisition; providing venture capital or equity lines of 
credit or serving as placement agent for the issuer or otherwise 
acting in furtherance of a private offering of the issuer. This 
proposed definition is the same definition as in proposed FINRA Rule 
2240(a)(4) (Research Analysts and Research Reports). See Regulatory 
Notice 08-55 (October 2008).
---------------------------------------------------------------------------

    In addition, the proposed rule would require a written report 
within five business days of completion of such internal investigation 
in which it was determined that a violation of the provisions of the 
Exchange Act, the rules thereunder, or FINRA rules prohibiting insider 
trading and manipulative and deceptive devices had occurred. The report 
must detail the completion of the investigation, including the results 
of the investigation, any internal disciplinary action taken, and any 
referral of the matter to FINRA, another self-regulatory organization 
(``SRO''), the SEC, or any other federal, state, or international 
regulatory authority.
    (E) Proposed FINRA Rule 3110(e) (Definitions)
    Proposed FINRA Rule 3110(e) would retain the definitions of 
``branch office,'' ``office of supervisory jurisdiction,'' and 
``business day'' in NASD Rule 3010(g). The branch office definition 
already has been harmonized with the definition of ``branch office'' in 
Incorporated NYSE Rule 342.10.
(2) Proposed FINRA Rule 3120 (Supervisory Control System)
    FINRA is proposing to replace NASD Rule 3012 (Supervisory Control 
System) with FINRA Rule 3120. Proposed FINRA Rule 3120(a) would retain 
NASD Rule 3012(a)(1)'s testing and verification requirements for the 
member's supervisory procedures, including the requirement to prepare 
and submit to the member's senior management a report at least annually 
summarizing the test results and any necessary amendments to those 
procedures.
    Proposed FINRA Rule 3120(b) would require a member that reported 
$200 million or more in gross revenue (total revenue less, if 
applicable, commodities revenue) on its FOCUS reports in the prior 
calendar year to include in the report it submits to senior management:
     a tabulation of the reports pertaining to customer 
complaints and internal investigations made to FINRA during the 
preceding year; and
     a discussion of the preceding year's compliance efforts, 
including procedures and educational programs, in each of the following 
areas:
     trading and market activities;
     investment banking activities;
     antifraud and sales practices;
     finance and operations;
     supervision; and
     anti-money laundering.
    The categories listed above are incorporated from the annual report 
content requirements of Incorporated NYSE Rule 342.30 (Annual Report 
and Certification).
    (3) Proposed FINRA Rule 3150 (Holding of Customer Mail)
    The proposed rule change would replace NASD Rule 3110(i) (Holding 
of Customer Mail) with proposed FINRA Rule 3150, a more general rule 
that would eliminate the strict time limits in NASD Rule 3110(i) and 
generally would allow a member to hold a customer's mail for a specific 
time period in accordance with the customer's written instructions if 
the member meets specified conditions. Specifically, proposed FINRA 
Rule 3150(a) would provide that a member may hold mail for a customer 
who will not be receiving mail at his or her usual address, provided 
that the member:
     receives written instructions from the customer that 
include the time period during which the member is requested to hold 
the customer's mail. If the time period included in the customer's 
instructions is longer than three consecutive months (including any 
aggregation of time periods from prior requests), the customer's 
instructions must include an acceptable reason for the request (e.g., 
safety or security concerns). Convenience is not an acceptable reason 
for holding mail longer than three months;
     informs the customer in writing of any alternate methods, 
such as email or access through the member's Web site, that the 
customer may use to receive or monitor account activity and information 
and obtains the customer's confirmation of the receipt of such 
information; and

[[Page 40799]]

     verifies at reasonable intervals that the instructions 
still apply.
    In addition, proposed FINRA Rule 3150(b) would require that the 
member be able to communicate, as necessary, with the customer in a 
timely manner during the time the member is holding the customer's mail 
to provide important account information (e.g., privacy notices, the 
SIPC information disclosures required by FINRA Rule 2266 (SIPC 
Information)).
    Finally, proposed FINRA Rule 3150(c) would require a member holding 
a customer's mail to take actions reasonably designed to ensure that 
the customer's mail is not tampered with, held without the customer's 
consent, or used by an associated person of the member in any manner 
that would violate FINRA rules, MSRB rules, or the federal securities 
laws.
    (4) Proposed FINRA Rule 3170 (Tape Recording of Registered Persons 
by Certain Firms)
    FINRA proposes to reconstitute NASD Rule 3010(b)(2) (Tape Recording 
of Conversations) without any substantive changes as new FINRA Rule 
3170. The only proposed changes to the rule text are minor editorial 
changes to assist with readability, changes to the definition of 
disciplinary history to reflect the adoption of the enumerated NASD 
rules as FINRA rules, and a definition clarifying that the term ``tape 
recording'' would include without limitation, any electronic or digital 
recording that meets the requirements of proposed FINRA Rule 3170.
(5) Proposal to Eliminate NYSE Rules
    As stated previously, the proposed rule change would delete 
corresponding provisions in the Incorporated NYSE Rules and 
Interpretations that are, in main part, either duplicative of, or do 
not align with, the proposed supervision requirements discussed above. 
Specifically, the proposed deleted rule provisions are:
     Incorporated NYSE Rule 342;
     Incorporated NYSE Rule Interpretations 342(a)(b)/01 
through 342(a)(b)/03, 342(b)/01 through 342(b)/02, 342(c)/02, 342(e)/
01, 342.10/01, 342.13/01, 342.15/01 through 342.15/05, 342.16/01 
through 342.16/03;
     Incorporated NYSE Rules 343, 343.10 and NYSE Rule 
Interpretation 343(a)/01;
     Incorporated NYSE Rule 351(e) and NYSE Rule Interpretation 
351(e)/01;
     Incorporated NYSE Rule 354; and
     Incorporated NYSE Rule 401.
    FINRA will announce the effective date of the proposed rule change 
in a Regulatory Notice to be published no later than 90 days following 
Commission approval. The effective date will be no later than 365 days 
following Commission approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\21\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. FINRA also believes that the proposed rule change 
would clarify and streamline the supervision and supervisory rules for 
adoption as FINRA Rules in the Consolidated FINRA Rulebook.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change would result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed rule change's 
risk-based approach for specified aspects of a member's supervisory 
procedures is intended to allow firms the flexibility to establish 
their supervisory programs in a manner that reflects their business 
models, and based on those models, focus on areas where heightened 
concerns may be warranted. For example, proposed FINRA Rule 3110's 
provisions requiring supervisory procedures for the risk-based review 
of all transactions relating to a member's investment banking or 
securities business and review of a member's correspondence and 
internal communications that are not of a subject matter that require 
review under FINRA and MSRB rules would alleviate compliance costs by 
providing members with greater flexibility to tailor their supervisory 
and supervisory control procedures to reflect their business, size, and 
organizational structure.
    In addition, FINRA believes that the proposed rule change is 
tailored to minimize the membership's burden and cost of complying with 
the consolidated supervision rules by providing exceptions, based on a 
member's size, resources, and business model, to specified supervisory 
and inspection requirements in proposed FINRA Rule 3110. Specifically, 
the proposed rule change provides an exception from proposed FINRA Rule 
3110's provisions prohibiting a member's supervisory personnel from 
supervising their own activities and from reporting to, or having their 
compensation or continued employment determined by, a person or persons 
they are supervising, where a member determines that compliance with 
either of these conditions is not possible because of the member's size 
or supervisory personnel's position within the firm. The proposed rule 
change also provides an exception from proposed FINRA Rule 3110's 
requirement that the person conducting a location inspection not be an 
associated person assigned to the location or is not directly or 
indirectly supervised by, or otherwise reporting to, an associated 
person assigned to that location, where the member determines that 
compliance with this requirement is not possible either because of the 
member's size or business model. These exceptions are designed in 
particular to provide relief to smaller-sized members, such as sole 
proprietors or members with only one office, as well as members with a 
business model where small or single person offices report directly to 
an OSJ manager who is also considered the office's branch office 
manager. At the same time, the proposed rule change is designed to 
protect against concerns that a member relying on the exceptions would 
be unable to comply with its supervisory and inspection obligations by 
requiring the member to document both the factors the member used to 
reach the determination that it needs to rely on the exceptions and how 
the member's reliance on the exception otherwise comports with the 
applicable standards set forth in proposed FINRA Rule 3110.
    The proposed rule change also seeks to mitigate compliance costs 
and burdens with respect to proposed FINRA Rule 3120's annual reporting 
requirements by requiring that only members reporting $200 million or 
more in gross revenues in the preceding year (increased from the $150 
million threshold originally proposed in the Initial Filing) \22\ 
include in their annual reports supplemental information from 
Incorporated NYSE Rule 342.30's annual report content requirements. 
FINRA believes that the revised threshold strikes the appropriate 
balance as it encompasses larger dual member firms, members engaged in 
significant underwriting activities (including variable annuity 
principal underwriting and fund distributions) and substantial trading 
activities or market making business, and members with extensive sales 
platforms--approximately 160 member firms in total. The additional 
content requirements applicable to such firms

[[Page 40800]]

would provide a valuable resource in the context of understanding and 
examining those firms and their activities, which can generally be more 
complex or sizeable than smaller firms' activities. FINRA also 
considered that most members meeting the proposed threshold currently 
are subject to Incorporated NYSE Rule 342.30's reporting requirement. 
Further, the metric is easily determined by reference to the member's 
FOCUS reports in the calendar year prior to the annual report.
---------------------------------------------------------------------------

    \22\ See infra note 22.
---------------------------------------------------------------------------

    In addition, FINRA has modified proposed FINRA Rule 3110(d)'s 
reporting obligations for internal investigation reports to FINRA 
regarding suspected ITSFEA violations in response to commenters' 
concerns regarding potential burdens and compliance costs. The 
modifications eliminate the requirement to file with FINRA an initial 
report of an internal investigation within ten business days of its 
commencement and replace it with a quarterly reporting requirement. In 
addition, FINRA has replaced the proposed requirement to report the 
completion of each internal investigation within five business days of 
its completion with a more focused requirement that is limited to 
investigations that resulted in a finding of violation.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    FINRA published the proposed consolidated FINRA supervision rules 
in Regulatory Notice 08-24 (May 2008) requesting comment from 
interested parties. FINRA received 47 comment letters in response to 
Regulatory Notice 08-24. On June 10, 2011, FINRA filed with the SEC SR-
FINRA-2011-028 (the ``Initial Filing''), a proposed rule change to 
adopt the consolidated FINRA supervision rules, which addressed the 
comments received in response to Regulatory Notice 08-24.\23\
---------------------------------------------------------------------------

    \23\ See Securities Exchange Act Release No. 64736 (June 23, 
2011), 76 FR 38245 (June 29, 2011) (Notice of Filing of File No. SR-
FINRA-2011-028).
---------------------------------------------------------------------------

    On June 29, 2011, the Initial Filing was published for comment in 
the Federal Register,\24\ and the SEC received 12 comment letters in 
response to the proposal.\25\ FINRA withdrew the Initial Filing on 
September 27, 2011 prior to filing a response to comments.\26\ 
Accordingly, the comments to the Initial Filing and FINRA's responses 
are discussed below.
---------------------------------------------------------------------------

    \24\ See supra note 22.
    \25\ Letters from David T. Bellaire, Esq., General Counsel and 
Director of Government Affairs, Financial Services Institute, to 
Elizabeth M. Murphy, Secretary, SEC, dated July 14, 2011 and July 
20, 2011 (``FSI''); letters from Clifford Kirsch and Eric A. Arnold, 
Sutherland Asbill and Brennan, LLP, on behalf of the Committee of 
Annuity Insurers, to Elizabeth M. Murphy, Secretary, SEC, dated July 
12, 2011, July 20, 2011, and August 4, 2011 (``CAI''); letter from 
Stephanie L. Brown, Managing Director and General Counsel, LPL 
Financial, to Elizabeth M. Murphy, Secretary, SEC, dated July 20, 
2011 (``LPL''); letter from Scott Cook, Senior Vice President 
Compliance, Charles Schwab & Co., Inc., to Elizabeth M. Murphy, 
Secretary, SEC, dated July 20, 2011 (``Schwab''); letter from Joan 
Hinchman, Executive Director, President and CEO, National Society of 
Compliance Professionals Inc., to Elizabeth M. Murphy, Secretary, 
SEC, dated July 20, 2011 (``NSCP''); letter from Sarah McCafferty, 
Vice President and Chief Compliance Officer, T. Rowe Price 
Investment Services, Inc., to Elizabeth M. Murphy, Secretary, SEC, 
dated July 20, 2011 (``T. Rowe Price''); letter from Peter J. 
Mougey, President, Public Investors Arbitration Bar Association, to 
Elizabeth M. Murphy, Secretary, SEC, dated July 20, 2011 
(``PIABA''); letter from John Polanin and Claire Santaniello, Co-
Chairs, Compliance and Regulatory Policy Committee 2011, Securities 
Industry and Financial Markets Association, to Elizabeth M. Murphy, 
Secretary, SEC, dated July 20, 2011 (``SIFMA''); and letter from 
Tamara K. Salmon, Senior Associate Counsel, Investment Company 
Institute, to Elizabeth M. Murphy, Secretary, SEC, dated July 20, 
2011 (``ICI''). The comment letters are available on the SEC's Web 
site.
    \26\ See Securities Exchange Act Release No. 65477 (October 4, 
2011), 76 FR 62890 (October 11, 2011) (Notice of Withdrawal of File 
No. SR-FINRA-2011-028).
---------------------------------------------------------------------------

(a) General Comments
    Several commenters to the Initial Filing expressed overall support 
for the proposed rule change, as well as expressing support for 
specific aspects of the proposal, such as the principles-based 
requirements for supervising supervisory personnel and codification of 
existing guidance regarding supervision of electronic communications 
and the use of electronic media to conduct required annual compliance 
meetings.\27\ However, one commenter opposed the flexibility within the 
proposed rules, especially the proposed risk-based or principles-based 
review standards for certain obligations, such as the approval of 
securities transactions and the review of certain correspondence, 
stating that such flexibility would result in reduced or diminished 
supervisory requirements that would not achieve the purpose of 
protecting the investing public.\28\
---------------------------------------------------------------------------

    \27\ SIFMA, FSI, CAI, Schwab, T. Rowe Price.
    \28\ PIABA.
---------------------------------------------------------------------------

    In response, FINRA notes that the proposed rules' risk-based 
approach for specified aspects of a member's supervisory procedures is 
intended to increase, not diminish, investor protection by allowing 
firms the flexibility to establish their supervisory programs in a 
manner that reflects their business models, and based on those models, 
focus on areas where heightened concern may be warranted. In addition, 
as FINRA noted in the Initial Filing, the proposed rules further 
protect investors by retaining certain specific prescriptive 
requirements of NASD Rules 3010 and 3012, such as mandatory inspection 
cycles, prohibitions on who can conduct location inspections, and 
procedures for the monitoring of certain enumerated activities, while 
providing additional prescriptive requirements where necessary, 
including special supervision for supervisory personnel rather than 
just the existing special supervision for producing managers, specific 
procedures to detect and investigate potential insider trading 
violations, and additional content requirements for specified firms' 
annual reports.
(b) Comments on Proposed FINRA Rule 3110(a)
(1) Suggested Amendment to FINRA Rule 3110(a)
    Proposed FINRA Rule 3110(a) (Supervisory System) would require a 
member to have a supervisory system for the activities of its 
associated persons that is reasonably designed to achieve compliance 
with applicable securities laws and regulations and FINRA and MSRB 
rules. One commenter to the Initial Filing suggested that FINRA amend 
proposed FINRA Rule 3110(a) to require a supervisory system for the 
``securities activities'' of a member's associated persons, as FINRA's 
rulemaking and examination authority does not extend to non-securities 
activities.\29\ The commenter further contended that the suggested 
amendment would make the provision consistent with proposed FINRA Rule 
3110(a)(2), which would require a member to designate an appropriately 
registered principal to be responsible for each type of a firm's 
business for which registration as a broker-dealer is required. As 
noted above and in the Initial Filing, proposed FINRA Rule 3110(a) is 
transferring existing rule text in NASD Rule 3010(a) with only minor 
changes (i.e., including an express reference to the MSRB rules, 
referring only to associated persons instead of the current reference 
in NASD Rule 3010(a) to each ``registered representative, registered 
principal, and other associated person''). FINRA continues to believe 
that proposed FINRA Rule 3110(a) would set forth the appropriate 
standard for members' supervisory systems, i.e., that a member's 
supervisory system for the activities of its associated persons be

[[Page 40801]]

reasonably designed to achieve compliance with applicable securities 
laws and regulations and FINRA and MSRB rules. In this regard, FINRA 
notes that Exchange Act Section 15A(b)(6) mandates, among other things, 
that FINRA's rules 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. Proposed 
FINRA Rule 3110(a) also is consistent with proposed FINRA Rule 
3110(b)(1), which would require a member to have supervisory procedures 
for the types of business in which it engages and the activities of its 
associated persons.\30\ Accordingly, FINRA declines to make the 
suggested change.
---------------------------------------------------------------------------

    \29\ SIFMA.
    \30\ As noted above, proposed FINRA Rule 3110(b)(1) is 
substantially similar to NASD Rule 3010(b)(1)'s requirements to 
establish, maintain, and enforce written procedures to supervise the 
types of business in which it engages and to supervise the 
activities of registered representatives, registered principals, and 
other associated persons but includes minor language revisions to 
mirror changes in proposed FINRA Rule 3110(a). Specifically, 
proposed FINRA Rule 3110(b)(1) refers only to associated persons 
instead of the current reference in NASD Rule 3010(b)(1) to 
``registered representatives, registered principals, and other 
associated persons'' and references the MSRB rules, which NASD Rule 
3010(b)(1) does not explicitly reference.
---------------------------------------------------------------------------

(2) Outside Business Activities
    Commenters requested that FINRA clarify that outside business 
activities of registered persons would be subject to FINRA Rule 3270 
(Outside Business Activities of Registered Persons) rather than to 
proposed FINRA Rule 3110.\31\ FINRA Rule 3270 generally pertains to 
outside business activities that are not within the scope of the 
registered representative's relationship with the member, and members 
must comply with the rule's requirements with respect to covered 
outside business activities. However, a member's supervisory system 
required by proposed FINRA Rule 3110 must include supervisory 
procedures that are reasonably designed to ensure compliance with FINRA 
Rule 3270, including the member's obligation pursuant to FINRA Rule 
3270 to evaluate the proposed activity to determine whether the 
activity properly is characterized as an outside business activity. If 
a member's evaluation revealed that the proposed activity was within 
the scope of the representative's relationship with the member, then 
that activity would be subject to the requirements of proposed FINRA 
Rule 3110.\32\
---------------------------------------------------------------------------

    \31\ CAI, FSI.
    \32\ FINRA also considers this reply to be responsive to FSI's 
request that FINRA clarify whether proposed FINRA Rule 3110(b)(1), 
which would require a member to establish, maintain, and enforce 
written supervisory procedures for its supervisory system, would 
apply to outside business activities of registered persons.
---------------------------------------------------------------------------

(3) Deleted Supplementary Material
    In the Initial Filing, proposed FINRA Rule 3110 included 
Supplementary Material .01 (Business Lines) providing that for a 
member's supervisory system required by proposed FINRA Rule 3110(a) to 
be reasonably designed to achieve compliance with FINRA Rule 2010 
(Standards of Commercial Honor and Principles of Trade), it must 
include supervision for all of the member's business lines irrespective 
of whether they require broker-dealer registration. A number of 
commenters provided comments on this proposed supplementary material. 
FINRA, however, has decided that the best course is to eliminate the 
proposed supplementary material from the proposed rule \33\ and will 
continue to apply FINRA Rule 2010's standards to non-securities 
activities of members and their associated persons consistent with 
existing case law.\34\
---------------------------------------------------------------------------

    \33\ The deletion of this proposed supplementary material has 
resulted in a change in numbering of the remaining supplementary 
material to proposed FINRA Rule 3110. For ease of reference, the 
proposed rule change employs the new proposed numbers in all 
instances.
    \34\ See, e.g., Ialeggio v. SEC, No. 98-70854, 1999 U.S. App. 
LEXIS 10362, at *4-5 (9th Cir. May 20, 1999) (``NASD's disciplinary 
authority is broad enough to encompass business-related conduct that 
is inconsistent with just and equitable principles of trade, even if 
that activity does not involve a security'' (citations omitted)); 
see also Vail v. SEC, 101 F.3d 37, 39 (5th Cir. 1996) (registered 
representative, who was serving as treasurer for a political-
affiliation club, violated just and equitable principles of trade 
when he misappropriated funds from the club); In re John M.E. Saad, 
Securities Exchange Act Release No. 62178, 2010 SEC LEXIS 1761, at 
*13-14 (May 26, 2010) (registered representative's falsification of 
receipts and submission on a fraudulent expense report violated just 
and equitable principles of trade), remanded on other grounds, No. 
10-1195, 2013 U.S. App. LEXIS 11691 (D.C. Cir. June 11, 2013).
---------------------------------------------------------------------------

(c) Comments on Proposed Supplementary Material .03
    As stated above, proposed Supplementary Material .03 (One-Person 
OSJs) would codify existing guidance on the designation and supervision 
of one-person OSJs and would clarify that the registered principal 
assigned to such an OSJ (``on-site principal'') cannot supervise his or 
her own sales activities and must be under the effective supervision 
and control of another appropriately registered principal (``senior 
principal''). The senior principal is responsible for supervising the 
activities of the on-site principal at such OSJ and must conduct on-
site supervision of the OSJ on a regular periodic schedule to be 
determined by the member.
(1) Clarification of ``Close Supervision and Control'' Requirement
    As proposed in the Initial Filing, Supplementary Material .03 would 
have required that the on-site principal be under the senior 
principal's ``close supervision and control.'' Although one commenter 
to the Initial Filing supported proposed Supplementary Material 
.03,\35\ another commenter requested that FINRA clarify the term 
``close supervision and control,'' stating that such term could be 
subject to a variety of interpretations.\36\ In response, FINRA has 
amended ``close supervision and control'' to read ``effective 
supervision and control,'' which should provide members with greater 
clarity. While the senior principal is not required to be physically 
present, full-time at the one-person OSJ, the member must be able to 
demonstrate ``effective supervision and control'' of the activities of 
the on-site principal at such OSJ.
---------------------------------------------------------------------------

    \35\ PIABA.
    \36\ FSI.
---------------------------------------------------------------------------

(2) Consideration of Independent Broker-Dealer Business Model
    Two commenters expressed concern that the proposed supplementary 
material does not take into account the business and supervisory 
structure of independent broker-dealer firms.\37\ Specifically, one 
commenter supported the notion that self-supervision of one's own 
securities activities may be problematic and agreed that the 
designation of a senior principal to oversee the activity of the on-
site principal may be necessary, but suggested that firms should have 
the flexibility to address self-supervision, and any conflicts such 
self-supervision may present, in their own manner.\38\ The commenter 
also stated that the requirement of ``periodic on-site supervision'' by 
a senior principal may not create the appropriate efficiencies or 
enhance the overall supervisory structure as intended, and moreover 
ignores the long established business practices of conducting 
supervision remotely.
---------------------------------------------------------------------------

    \37\ LPL, FSI.
    \38\ LPL.
---------------------------------------------------------------------------

    FINRA believes proposed Supplementary Material .03 strikes the 
correct balance between the flexibility firms need to establish a 
supervisory

[[Page 40802]]

structure best suited to their business models by allowing firms to 
establish one-person OSJs, with the need for effective supervision by 
clarifying that a reasonable supervisory structure cannot permit a 
principal to supervise his or her own sales activities due to the 
conflict of interest such situation presents.\39\ Accordingly, FINRA 
believes that the requirement in proposed Supplementary Material .03 to 
have a senior principal regularly supervise the activities of an on-
site producing principal is necessary to ensure that the on-site 
principal's activities are appropriately supervised.
---------------------------------------------------------------------------

    \39\ See SEC Division of Market Regulation, Staff Legal Bulletin 
No. 17: Remote Office Supervision (March 19, 2004) (reminding 
broker-dealers that small, remote offices require vigilant 
supervision and specifically noting that ``[n]o individual can 
supervise themselves''); NASD Regulatory & Compliance Alert, Volume 
11, Number 2 (June 1997) (cited by Staff Legal Bulletin No. 17 as 
support for statement that individuals cannot supervise themselves); 
see also In re Stuart K. Patrick, 51 S.E.C. 419, 422 (May 17, 1993) 
(``[s]upervision, by its very nature, cannot be performed by the 
employee himself'') (SEC order sustaining application of the New 
York Stock Exchange's supervisory rule--also cited by Staff Legal 
Bulletin No. 17 as support for statement that individuals cannot 
supervise themselves).
---------------------------------------------------------------------------

    The second commenter expressed concern that proposed Supplementary 
Material .03 would prohibit a ``field OSJ'' supervisory structure used 
by many independent broker-dealer firms. According to the commenter, a 
``field OSJ'' supervisory structure uses field OSJ principals to 
supervise branch offices (e.g., approving client accounts, reviewing 
simple requests, and performing other low-level compliance functions). 
The ``field OSJ'' principals are then supervised by a firm's home 
office principals. Specifically, the commenter was concerned that a 
``field office'' supervisory structure would be prohibited by proposed 
Supplementary Material .03 because such structure would allow a ``field 
OSJ'' principal to engage in certain basic compliance tasks related to 
his own business, and may not meet the previous ``close supervision and 
control'' standard.\40\ The commenter requested more latitude to create 
effective compliance supervision systems and an explanation to justify 
the ``disparate impact on IBD firms.''
---------------------------------------------------------------------------

    \40\ FSI.
---------------------------------------------------------------------------

    As noted above, proposed Supplementary Material .03 would require 
effective supervision and control of the sales activities of the on-
site principal at the one-person OSJ by a senior principal. The 
proposed supplementary material does not prohibit the on-site principal 
at the one-person OSJ from supervising the activities of other 
associated persons or other offices (e.g., acting as a field principal 
for other associated persons or offices).
(3) Use of Technological Supervisory Tools
    Both commenters also stated that the proposal ``ignore[s] the 
nature of business in today's high technology environment'' and that 
technology can effectively assist with supervision.\41\ Moreover, one 
commenter stated that the proposal disregards the substantial costs 
that would be incurred by independent broker-dealers that have long-
established business practices of conducting supervision remotely.\42\ 
FINRA recognizes that technological supervisory tools may augment a 
senior principal's supervision. However, FINRA believes technology 
cannot replace the need for a senior principal who is responsible for 
supervising the sales activities of the on-site principal; conducting 
regular periodic on-site supervision of a producing principal is 
necessary to ensure effective supervision. In addition, FINRA notes 
that the proposed supplementary material does not specify an exact time 
frame for such on-site supervision. Rather, proposed Supplementary 
Material .03 would provide members with the flexibility to establish a 
regular periodic schedule for such on-site supervision by the senior 
principal based on a variety of factors, including the nature and 
complexity of the securities activities for which the one-person OSJ is 
responsible, the nature and extent of contact with customers, and the 
disciplinary history of the on-site principal.
---------------------------------------------------------------------------

    \41\ LPL, FSI.
    \42\ LPL.
---------------------------------------------------------------------------

(d) Comments on Proposed Supplementary Material .04
    As detailed above, proposed Supplementary Material.04 (Supervision 
of Multiple OSJs by a Single Principal) would establish a general 
presumption that a principal will not be assigned to supervise more 
than one OSJ. The proposed supplementary material would set forth 
factors a member should consider if assigning a principal to two or 
more OSJs. There is a further general presumption that a principal 
supervising more than two OSJs is unreasonable and such determination 
will be subject to greater scrutiny, and the member will have a greater 
burden to evidence the reasonableness of such structure.
    One commenter to the Initial Filing supported proposed 
Supplementary Material .04,\43\ but three commenters raised concerns 
regarding aspects of the proposed supplementary material.\44\ 
Specifically, one commenter objected that the proposed supplementary 
material was ``unnecessarily restrictive'' by depriving members of the 
flexibility to determine how to supervise their OSJs.\45\ The same 
commenter also argued that the requirement of a ``physical presence, on 
a regular and routine basis'' was overly burdensome and unnecessary in 
light of effective electronic supervisory methods and suggested that 
FINRA either remove it or provide additional clarification on the 
phrase.\46\ All three commenters objected to the proposed presumption 
that one principal supervising more than two OSJs is unreasonable,\47\ 
with one commenter also objecting to the presumption that a principal 
will not be assigned to supervise more than one OSJ.\48\ That 
particular commenter stated that such negative presumptions were 
inappropriate and could limit the development and design of more 
effective supervisory models.\49\ Finally, one commenter stated that 
proposed Supplementary Material .04 interchangeably uses the terms 
``on-site

[[Page 40803]]

supervisor'' and ``designated principal'' and requested that FINRA 
clarify that the terms are not intended to encompass a member's ``up-
the-chain'' reporting structure.\50\
---------------------------------------------------------------------------

    \43\ PIABA.
    \44\ Schwab, SIFMA, FSI. FSI also stated that proposed 
Supplementary Material .04 and proposed FINRA Rule 3110(a)(4) should 
clearly state that firms have discretion to create supervisory 
systems that are reasonably designed to achieve compliance with 
applicable FINRA rules and MSRB rules. FINRA notes that proposed 
FINRA Rule 3110(a) already provides the overarching standard that 
supervisory systems be reasonably designed to achieve compliance 
with the enumerated laws and rules.
    \45\ SIFMA. SIFMA also stated in footnote 14 of its comment 
letter, that it assumes ``that proposed Supplementary Material [.04] 
is not intended to change existing requirements regarding product-
specific principals that can be designated for a firm as a whole as 
opposed to being designated for a particular office, e.g. a member 
firm's municipal securities principal. See MSRB Rule G-27.'' It is 
difficult to interpret the specific nature of the commenter's 
concerns from this assertion. However, in the context of the 
commenter's municipal securities example, FINRA believes that 
proposed Supplementary Material .04 does not conflict with the 
specific requirements in MSRB Rule G-27 (Supervision) regarding the 
obligation of one or more appropriate principals designated under 
Rule G-27 to supervise the municipal securities activity of the 
dealer and the dealer's associated persons to ensure compliance with 
the rules of the MSRB.
    \46\ SIFMA raised a similar comment on Regulatory Notice 08-24 
that the proposed supplementary material's requirement of a 
``physical presence'' on a regular and routine basis was overly 
burdensome. As discussed in the Initial Filing, FINRA declined to 
make a change to the provision. See Exhibit 2b, page 240.
    \47\ Schwab, SIFMA, FSI.
    \48\ Schwab.
    \49\ Schwab.
    \50\ SIFMA.
---------------------------------------------------------------------------

    In response, FINRA notes that the presumptions are consistent with 
the long-standing requirement (and cornerstone of a member's 
supervisory structure) in NASD Rule 3010(a)(4) for members to have an 
on-site principal in each OSJ location, which is being transferred 
virtually unchanged as proposed FINRA Rule 3110(a)(4). Thus, the 
physical presence, on a regular basis, of a principal already is 
required at each OSJ. FINRA believes the term ``physical presence, on a 
regular basis,'' supports the general requirement in NASD Rule 
3010(a)(4) to have a principal in each OSJ.
    Proposed Supplementary Material .04 would provide members with 
greater flexibility than currently exists under NASD Rule 3010. In 
recognition of today's evolving business models, the proposed 
supplementary material would allow members the flexibility to designate 
and assign one principal to supervise more than one OSJ if the member 
determines that such supervision is reasonable and effective. However, 
FINRA expressly included the general presumption to make clear its view 
that effective supervision by one principal at more than two OSJs 
presents unique supervisory challenges and should be carefully 
considered and evidenced by a member. The proposed supplementary 
material would require a member that is assigning a principal to 
supervise more than one OSJ to consider, among other things, whether 
the OSJ locations are sufficiently close in proximity to ensure that 
the principal is physically present at each location on a regular and 
routine basis. In addition, as discussed above, while a member has the 
flexibility to use appropriate technology as part of its supervisory 
systems, FINRA does not believe that such technology can replace the 
effectiveness of on-site supervision. Thus, FINRA declines to remove 
this requirement.
    In response to the comment to clarify the use of the terms ``on-
site supervisor'' and ``designated principal'' in Supplementary 
Material .04 to make it clear that the terms are not intended to 
encompass a member's ``up-the-chain'' reporting structure, FINRA 
clarifies that, for purposes of this provision, the two terms refer to 
one person--the on-site principal assigned and designated to supervise 
the OSJ pursuant to proposed FINRA Rule 3110(a)(4).\51\
---------------------------------------------------------------------------

    \51\ FINRA also noted in the Initial Filing that, in response to 
comments, it had modified the proposed supplementary material to 
make it clear that the presumption applies only to the designation 
of the on-site principal supervisor required for FINRA Rule 
3110(a)(4) purposes in each OSJ location.
---------------------------------------------------------------------------

    (e) Comments on Proposed FINRA Rule 3110(b)(2) and Supplementary 
Material .06
    As stated above, proposed FINRA Rule 3110(b)(2) would require that 
a member have supervisory procedures for the review by a registered 
principal, evidenced in writing, of all transactions relating to the 
member's investment banking or securities business. Proposed 
Supplementary Material .06 (Risk-based Review of Member's Investment 
Banking and Securities Business) would permit a member to use a risk-
based system to review these transactions.
    Two commenters to the Initial Filing requested that FINRA clarify 
in the body of FINRA Rule 3110(b)(2) that members may use risk-based 
reviews of their investment banking and securities transactions.\52\ 
Alternatively, one commenter requested that FINRA eliminate the word 
``all'' in proposed FINRA Rule 3110(b)(2) to clarify that the rule 
language is modified by proposed Supplementary Material .06.\53\
---------------------------------------------------------------------------

    \52\ SIFMA, NSCP.
    \53\ SIFMA.
---------------------------------------------------------------------------

    FINRA declines to make the suggested changes. Proposed FINRA Rule 
3110(b)(2) would transfer into the Consolidated FINRA Rulebook a 
member's fundamental obligation regarding principal review of all 
transactions relating to its investment banking and securities 
business, while at the same time providing supplementary material that 
would permit, but does not require, a member to conduct risk-based 
reviews of such transactions. Also, as FINRA noted in the Initial 
Filing, supplementary material is part of the rule, and FINRA believes 
that locating the risk-based discussion in Supplementary Material .06 
improves the readability of the rule without affecting the weight or 
significance of the provision.
    In addition, as FINRA stated in the Initial Filing the term ``risk-
based,'' which the proposed rule uses in several places, describes the 
type of methodology a member may use to identify and prioritize for 
review those areas that pose the greatest risk of potential securities 
laws and SRO rule violations. FINRA acknowledges that members may need 
to prioritize their review processes due to the volume of information 
that must be reviewed by using a review methodology based on a 
reasonable sampling of information in which the sample is designed to 
discern the degree of overall compliance, the areas that pose the 
greatest numbers and risks of violation, and any possibly needed 
changes to firm policies and procedures. FINRA believes that allowing 
risk-based review in limited circumstances improves investor protection 
by ensuring that those areas that pose the greatest potential for 
investor harm are reviewed more quickly to uncover potential 
violations.
    (f) Comments on Proposed FINRA Rule 3110(b)(4) and Supplementary 
Materials .07-.10
    (1) Review of Internal Communications
    As proposed in the Initial Filing, FINRA Rule 3110(b)(4) (Review of 
Correspondence and Internal Communications) would require a member to 
have procedures to review incoming and outgoing written (including 
electronic) correspondence and internal communications relating to its 
investment banking or securities business. The supervisory procedures 
must ensure that the member properly identifies and handles in 
accordance with firm procedures, customer complaints, instructions, 
funds and securities, and communications that are of a subject matter 
requiring review under FINRA or MSRB rules and the federal securities 
laws. Also as originally proposed, Supplementary Material .07 (Risk-
based Review of Correspondence and Internal Communications) would 
permit a member to use risk-based principles to decide the extent to 
which additional policies and procedures for the review of incoming and 
outgoing written (including electronic) correspondence with the public 
and internal communications that fall outside of the subject matters 
listed in proposed FINRA Rule 3110(b)(4) are appropriate for its 
business and structure.
    A number of commenters to the Initial Filing suggested that 
proposed FINRA Rule 3110(b)(4) and proposed Supplementary Material .07 
could be read to create a new affirmative obligation to supervise all 
written (including electronic) internal communications relating to 
investment banking and securities activities.\54\ Commenters requested 
that FINRA either revise these provisions to reflect the guidance in 
Regulatory Notice 07-59 (December 2007) regarding the review of 
internal communications \55\ or that

[[Page 40804]]

FINRA remove the review requirements for internal communications 
(including the use of a risk-based review standard) from the 
provisions.\56\
---------------------------------------------------------------------------

    \54\ CAI, ICI, T. Rowe Price, Schwab, FSI, SIFMA.
    \55\ CAI, ICI, T. Rowe Price, SIFMA.
    \56\ FSI, Schwab.
---------------------------------------------------------------------------

    In response to the commenters' concerns, FINRA has modified 
proposed FINRA Rule 3110(b)(4) and Supplementary Material .07 to more 
precisely reflect the guidance in Regulatory Notice 07-59 that a member 
must have supervisory procedures to provide for the member's review of 
its internal communications to properly identify communications that 
are of a subject matter that require review under FINRA or MSRB rules 
and the federal securities laws and that, by employing risk-based 
principles, the member must decide the extent to which additional 
policies and procedures for the review of additional internal 
communications are necessary for its business and structure. These 
modifications reflect FINRA's intent, as noted in the Initial Filing, 
to codify Regulatory Notice 07-59's guidance regarding the supervision 
of electronic communications.\57\
---------------------------------------------------------------------------

    \57\ One commenter, ICI, also questioned the meaning of the 
phrase ``and funds and securities'' in proposed FINRA Rule 
3110(b)(4)'s language stating that a member's supervisory procedures 
must ``ensure that the member properly identifies `and handle[s] in 
accordance with firm procedures, customer complaints, instructions, 
and funds and securities, and communications that are of a subject 
matter that require review under FINRA and MSRB rules.' '' The word 
``and'' before ``funds and securities'' was a typographical error. 
As corrected, the provision requires that a member's supervisory 
procedures ``must ensure that the member properly identifies and 
handles in accordance with firm procedures, customer complaints, 
instructions, funds and securities, and communications that are of a 
subject matter that require review under FINRA and MSRB rules.''
---------------------------------------------------------------------------

(2) Evidence of Review
    Proposed Supplementary Material .08 (Evidence of Review of 
Correspondence and Internal Communications) would clarify that merely 
opening a communication is not sufficient review. Instead, a member 
must identify what communication was reviewed, the identity of the 
reviewer, the date of review, and the actions taken by the member as a 
result of any significant regulatory issues identified during the 
review.
    One commenter requested that FINRA delete the provision stating 
that merely opening a communication is not sufficient review.\58\ FINRA 
addressed this issue in the Initial Filing and declined to make the 
suggested change. As noted in the Initial Filing, proposed 
Supplementary Material .08 would codify existing guidance that FINRA 
believes remains appropriate, especially as it is unclear how an opened 
communication, by itself, would be sufficient to demonstrate actual 
review of the communication.\59\ For this reason, FINRA declines to 
delete the provision.
---------------------------------------------------------------------------

    \58\ SIFMA.
    \59\ See also Regulatory Notice 07-59 (December 2007) (``Members 
should remind their reviewers that merely opening the communication 
will not be deemed a sufficient review.'').
---------------------------------------------------------------------------

    The same commenter also requested that FINRA clarify what other 
evidence of review is necessary if an email does not raise any issues 
that warrant follow-up. FINRA does not believe further clarification is 
necessary as proposed Supplementary Material .08 specifies the required 
evidence of review. As noted above, the proposed supplementary material 
would require a member to identify what communication was reviewed, the 
identity of the reviewer, the date of review, and the actions taken by 
the member as a result of any significant regulatory issues identified 
during the review. Where review has not identified any such issues, 
this last requirement would not apply.
    The commenter also suggests that FINRA assist members' management 
of recordkeeping costs by clarifying that a member does not have to 
retain the specified information fields required by Supplementary 
Material .08 for communications that are reviewed through electronic 
review systems or lexicon-based screening tools if those messages do 
not generate review alerts. FINRA declines to accept this suggestion; 
the required documentation is necessary to demonstrate that the 
communication was actually reviewed. In addition, failing to record and 
retain such information, such as the identity of the reviewer, could be 
contrary to a member's record retention obligations required under both 
FINRA and SEC rules.\60\
---------------------------------------------------------------------------

    \60\ See NASD Rule 3010(d)(3) (Retention of Correspondence) (to 
be replaced by proposed Supplementary Material .10) (both provisions 
require that, among other things, the person who reviewed 
correspondence be ascertainable from the member's retained records); 
see also SEA Rule 17a-4(b)(4) (requiring, among other things, that a 
broker-dealer's retained communications records include any 
approvals of communications sent).
---------------------------------------------------------------------------

(3) Delegation of Review Functions
    Proposed Supplementary Material .09 (Delegation of Correspondence 
and Internal Communication Review Functions) would permit a supervisor/
principal to delegate certain review functions, while remaining 
ultimately responsible for the performance of all necessary supervisory 
reviews.
    One commenter to the Initial Filing suggested that the proposed 
supplementary material be included in the body of proposed FINRA Rule 
3110(b)(4).\61\ FINRA declines to make the suggested change. As stated 
above, supplementary material is part of the rule, and FINRA believes 
that locating this provision in Supplementary Material .09 improves the 
readability of the rule without affecting the weight or significance of 
the provision.
---------------------------------------------------------------------------

    \61\ SIFMA.
---------------------------------------------------------------------------

(4) Retention of Correspondence and Internal Communications
    Proposed Supplementary Material .10 (Retention of Correspondence 
and Internal Communications) would require, among other things, that a 
member retain internal communications and correspondence of associated 
persons relating to the member's investment banking or securities 
business for the period of time and accessibility specified in SEA Rule 
17a-4(b) (not less than three years, the first two years in an easily 
accessible place).\62\
---------------------------------------------------------------------------

    \62\ 17 CFR 240.17a-4(b).
---------------------------------------------------------------------------

    One commenter to the Initial Filing requested that FINRA expand the 
record retention period in proposed Supplementary Material .10 to six 
years to match the eligibility provisions for customer arbitration 
disputes in FINRA Rule 12206 (Time Limits).\63\ FINRA declines to make 
the suggested change. As noted in the Initial Filing, the proposed rule 
purposefully aligns the record retention period for communications with 
the SEC's record retention period for the same types of communications 
to achieve consistent regulation in this area.
---------------------------------------------------------------------------

    \63\ PIABA. PIABA also requested that FINRA propose a rule 
requiring that records pertaining to correspondence and internal 
communications as well as any other customer-related documents, be 
made available upon request to customers and former customers within 
a reasonable time and at no charge. FINRA considers the comment to 
be outside the scope of the proposed rule change.
---------------------------------------------------------------------------

(g) Comments on Proposed FINRA Rule 3110(b)(5)
    Proposed FINRA Rule 3110(b)(5) (Review of Customer Complaints) 
would require members to have supervisory procedures to capture, 
acknowledge, and respond to all written (including electronic) customer 
complaints.
(1) New Requirement for Certain Members
    One commenter to the Initial Filing noted that the requirement to 
``acknowledge'' customer complaints would be a new requirement for 
firms currently required to comply only with NASD rules.\64\ FINRA 
previously addressed this comment in the Initial

[[Page 40805]]

Filing and acknowledged that this requirement would be a new 
requirement for many FINRA members. Nevertheless, FINRA believes that 
the investor protection that this provision would provide outweighs any 
potential compliance burdens because requiring members to acknowledge 
customer complaints would help to ensure that customers are timely 
notified that their complaints have been received and recorded, and 
that they can expect the issues raised in their complaints to be 
addressed within a reasonable period. In addition, the records of 
acknowledgements should provide supervisory personnel with another tool 
for confirming that the issues raised in complaints are ultimately 
addressed through timely responses. The acknowledgment requirement also 
should help to focus members' attention on specific situations where 
investor harm may be occurring, as well as to alert members to more 
general problems customers may be having with their registered 
representatives, products, or services. In this regard, the 
acknowledgement requirement may serve to strengthen members' risk 
assessment capabilities. Further, the absence in the proposed rule of a 
specific time period in which members must acknowledge their receipt of 
customer complaints provides members a certain amount of flexibility in 
designing their supervisory procedures to address this new 
responsibility. As noted in the Initial Filing, however, members would 
be expected to explain the reasonableness of a period in excess of 30 
days.
---------------------------------------------------------------------------

    \64\ Schwab.
---------------------------------------------------------------------------

(2) Exclusion of Oral Complaints
    One commenter supported the decision to include only written 
customer complaints in proposed FINRA Rule 3110(b)(5).\65\ Another 
commenter, however, stated that members should be required to reduce an 
oral complaint to writing or to provide the customer with a form.\66\ 
As FINRA noted in the Initial Filing, FINRA declined to include oral 
complaints because they are difficult to capture and assess, whereas 
members can more readily capture and assess written complaints. For 
these reasons, FINRA continues to believe that proposed FINRA Rule 
3110(b)(5) should include only written customer complaints. However, as 
FINRA stated in the Initial Filing, FINRA encourages members to provide 
customers with a form or other format that will allow customers to 
detail their complaints in writing.\67\ In addition, FINRA continues to 
remind members that the failure to address any customer complaint, 
written or oral, may be a violation of FINRA Rule 2010.
---------------------------------------------------------------------------

    \65\ T. Rowe Price.
    \66\ PIABA.
    \67\ See Exhibit 2b, page 249.
---------------------------------------------------------------------------

(3) Guidance on Certain Types of Customer Complaints
    One commenter asked how FINRA Rule 3110(b)(5)'s proposed 
requirements would apply to repetitious, threatening, or anonymous 
complaints received by members. Specifically, the commenter asked 
whether a member could address repeated complaints from the same person 
on the same issue by responding only once to the issue and informing 
the complainant that no further responses would be forthcoming. The 
commenter also requested that FINRA amend proposed FINRA Rule 
3110(b)(5) to recognize that members cannot respond to anonymous 
customer complaints.\68\ In addition, the commenter asked whether an 
oral response to a complaint would be appropriate, as long as the 
member maintained sufficient records to document the response.
---------------------------------------------------------------------------

    \68\ T. Rowe Price. The commenter also requested that FINRA 
clarify that anonymous complaints do not need to be considered 
complaints for purposes of FINRA Rule 4530 (Reporting Requirements). 
FINRA considers the commenter's request for clarification regarding 
FINRA Rule 4530 to be outside the scope of the proposed rule change, 
though FINRA notes that the FINRA Rule 4530 reporting system 
instructs members regarding how to report anonymous complaints for 
purposes of the rule.
---------------------------------------------------------------------------

    Proposed FINRA Rule 3110(b)(5) was drafted in a manner to provide 
members with the flexibility to design supervisory procedures that 
would be appropriate for each member's size, business model, and the 
volume and type of complaints received. Accordingly, the proposed 
provision does not set forth prescriptive requirements a member must 
use to acknowledge and respond to a written complaint or how a firm 
must handle repetitious, threatening, or anonymous complaints. For many 
customer complaints, a member may evidence both its acknowledgement and 
response in one communication. For complaints raising multiple or 
complicated issues, members may choose first to acknowledge the 
complaint and send a following response after completing a review of 
the issues raised. With respect to repetitious complaints from the same 
individual that raise no new issues, a member may choose to provide a 
response only once. A member may also consider whether to include a 
notation on the response that the member will not provide additional 
responses to subsequent complaints from that individual raising the 
same issues. For complaints containing threats, in addition to 
acknowledging and responding to the complaint, the member may wish to 
adopt procedures to review such complaints in light of the potential 
seriousness of the threat and decide on appropriate action, up to, and 
including, contacting the appropriate law enforcement authority, if 
deemed necessary. FINRA also notes that, while members would not be 
able to acknowledge or respond to truly anonymous complaints, a member 
would still have an obligation to capture and review the complaint to 
determine whether it contains a legitimate grievance.
(h) Comments on Proposed FINRA Rule 3110(b)(6) and Supplementary 
Material .11
    Proposed FINRA Rule 3110(b)(6) (Documentation and Supervision of 
Supervisory Personnel) is based largely on existing provisions in NASD 
Rule 3010(b)(3) requiring a member's supervisory procedures to set 
forth the member's supervisory system and to include a record of the 
member's supervisory personnel with such details as titles, 
registration status, locations, and responsibilities. The proposed rule 
also would include two new provisions:
     Proposed FINRA Rule 3110(b)(6)(C) requiring a member to 
have procedures prohibiting its supervisory personnel from supervising 
their own activities and reporting to, or having their compensation or 
continued employment determined by, a person the supervisor is 
supervising (the provision also would provide a limited size and 
resources exception to this general requirement); and
     Proposed FINRA Rule 3110(b)(6)(D) requiring a member to 
have procedures to prevent the standards of supervision required 
pursuant to proposed FINRA Rule 3110(a) from being reduced in any 
manner due to any conflicts of interest that may be present with 
respect to the associated person being supervised, such as the person's 
position, the amount of revenue such person generates for the firm, or 
any compensation that the supervisor may derive from the associated 
person being supervised.
    Proposed Supplementary Material .11 (Supervision of Supervisory 
Personnel) would provide that a member generally will need to rely on 
the exception provided in proposed FINRA Rule 3110(b)(6)(C) only 
because it is a sole proprietor in a single-person firm or where a 
supervisor holds a very senior executive position within the firm.

[[Page 40806]]

(1) Commission Overrides
    One commenter requested that FINRA add rule language explaining 
that the prohibition against supervisors having their compensation 
determined by a person who is supervised, does not include a supervisor 
receiving commission overrides.\69\ FINRA addressed this comment in the 
Initial Filing and declined to make the suggested change. FINRA noted 
in the Initial Filing that, although a supervised person may affect his 
or her supervisor's compensation (through overrides or in other ways), 
proposed FINRA Rule 3110(b)(6) concerns only those situations where a 
supervised person directly controls a supervisor's compensation or 
continued employment. In the commission override context, however, the 
member would still need to address this conflict in its procedures; 
that is, the override may not be a factor in reducing the standard of 
supervision in any manner. For these reasons, FINRA declines to make 
the suggested change. In addition, FINRA notes that the commenter 
expressly agreed with FINRA's statements on this point in the Initial 
Filing and has not provided additional information to support adding 
the suggested rule language.
---------------------------------------------------------------------------

    \69\ FSI.
---------------------------------------------------------------------------

(2) Conflicts of Interest
    Some commenters expressed concern that requiring members to have 
procedures to prevent the supervision standards from being reduced in 
any manner due to any conflicts of interest that may be present creates 
a strict liability standard that would require members to eliminate any 
and all conflicts of interest that could be inconsistent with existing 
supervisory roles, no matter how slight.\70\ Commenters suggested that 
FINRA either eliminate the provision or amend the provision to include 
a reasonableness standard.\71\
---------------------------------------------------------------------------

    \70\ Schwab, SIFMA, FSI. As part of its argument, FSI noted that 
the Initial Filing's discussion of examples of potential conflicts 
of interest included ``any other factor that would present a 
conflict'' and asked that FINRA clarify that this language would 
apply only to conflicts of interest that are known, or should 
reasonably be known, to the firm.
    \71\ Schwab, SIFMA.
---------------------------------------------------------------------------

    FINRA disagrees with this strict liability argument and declines to 
eliminate the provision. The reasonably designed standard that applies 
to the supervisory procedures required throughout proposed FINRA Rule 
3110(b) does not recognize a strict liability obligation requiring 
identification and elimination of all conflicts of interest. Rather, 
the reasonably designed standard recognizes that while a supervisory 
system cannot guarantee strict compliance, the system must be a product 
of sound thinking and within the bounds of common sense, taking into 
consideration the factors that are unique to a member's business.\72\ 
Accordingly, a member's conflict of interest procedures should reflect 
a member's sound, common sense identification of potential conflicts of 
interest, based on factors unique to the member's business, and address 
how the member will prevent these conflicts from reducing in any manner 
the standards of supervision for its supervisory personnel.
---------------------------------------------------------------------------

    \72\ See Notice to Members 99-45 (June 1999).
---------------------------------------------------------------------------

    FINRA also declines the suggestion to include a reasonableness 
standard. As FINRA noted in the Initial Filing, amending the proposed 
conflict of interest requirement in this manner would have the effect 
of altering the standards within the rule that describe the outcome the 
procedures should try to achieve, resulting in an impermissible 
relaxation of the standard around which the rule is designed.
(3) Limited Exception
    One commenter stated, without additional detail, that there were 
``potentially limitless'' situations where a member would need to rely 
on the proposed exception from the general supervisory requirements and 
requested that FINRA amend proposed Supplementary Material .11 to 
provide only illustrative examples of when a member could rely on the 
exception.\73\ FINRA declines to make the suggested change. The 
proposed exception is specifically based on a member's inability to 
comply with the general supervisory requirements because of the 
member's size or supervisory personnel's position within the firm, and 
proposed Supplementary Material .11 reflects FINRA's belief that a 
member will generally need to rely on the exception only because it is 
a sole proprietor in a single-person firm or where a supervisor holds a 
very senior executive position within the firm. However, a member may 
still rely on the exception in other instances where it cannot comply 
because of its size or supervisory personnel's position within the 
firm, provided the member documents the factors used to reach its 
determination and how the supervisory arrangement with respect to the 
supervisory personnel otherwise comports with proposed FINRA Rule 
3110(a).
---------------------------------------------------------------------------

    \73\ CAI.
---------------------------------------------------------------------------

(i) Comments on Proposed FINRA Rule 3110(b)(7) and Supplementary 
Material .12
    FINRA Rule 3110(b)(7) (Maintenance of Written Supervisory 
Procedures) would require a member to retain and keep current, a copy 
of the member's written supervisory procedures at each OSJ and at each 
location where supervisory activities are conducted on behalf of the 
member. As proposed in the Initial Filing, the member would also have 
to communicate any amendments to its written supervisory procedures 
throughout its organization. Proposed Supplementary Material .12 (Use 
of Electronic Media to Communicate Written Supervisory Procedures) 
would permit a member to satisfy its obligation to communicate its 
written supervisory procedures, and any amendments thereto, using 
electronic media, provided that the member complies with certain 
conditions.
(1) Communicating Written Supervisory Procedures
    Several commenters to the Initial Filing requested that FINRA 
revise proposed FINRA Rule 3110(b)(7) and Supplementary Material .12 to 
require that members communicate such material only to relevant 
associated persons and/or supervisory personnel rather than to all 
associated persons.\74\ The commenters suggested it would be 
inappropriate to communicate written supervisory procedures and 
amendments throughout a firm if those procedures or amendments are 
relevant only to a limited business line or set of associated persons. 
In response to these concerns, FINRA has revised proposed FINRA Rule 
3110(b)(7) and Supplementary Material .12 to clarify that a member is 
responsible for promptly communicating its written supervisory 
procedures and amendments to all associated persons to whom such 
written supervisory procedures and amendments are relevant based on 
their activities and responsibilities. FINRA declines to adopt the 
suggestion to limit the requirement to distribute written supervisory 
procedures and amendments to ``supervisory personnel.'' As noted 
further below, all associated persons are deemed to have knowledge of 
and are subject to a member's supervisory procedures and amendments. 
Requiring a member to

[[Page 40807]]

communicate to all associated persons, and not just ``supervisory 
personnel,'' the written supervisory procedures and amendment relevant 
to their activities helps ensure that the member's associated persons 
have this requisite knowledge.
---------------------------------------------------------------------------

    \74\ SIFMA, T. Rowe Price, NSCP (requesting changes to 
Supplementary Material .12), Schwab (requesting changes to FINRA 
Rule 3110(b)(7)).
---------------------------------------------------------------------------

(2) Accessibility of Written Supervisory Procedures
    As proposed in the Initial Filing, Supplementary Material .12 
required that a member using electronic media to communicate its 
written supervisory procedures make its procedures ``quickly and easily 
accessible'' to associated persons through, for example, the member's 
intranet system. One commenter requested that the term ``quickly and 
easily accessible'' be modified to ``readily accessible,'' which the 
commenter contended is a term regularly used in FINRA and SEC 
rules.\75\ In response, FINRA has modified proposed Supplementary 
Material .12 to use this term.
---------------------------------------------------------------------------

    \75\ SIFMA.
---------------------------------------------------------------------------

(3) Use of ``Promptly''
    The same commenter also requested that FINRA delete the term 
``promptly'' from proposed Supplementary Material .12's requirement 
that members promptly post all written supervisory procedures 
amendments to the electronic media. Instead, the commenter requested 
that FINRA require that the written supervisory procedures be ``timely 
communicated.'' FINRA, however, declines to make this change as it 
views ``promptly'' and ``timely'' as having the same meaning in the 
context of updating and distributing written supervisory procedures 
amendments. In addition, FINRA has amended proposed FINRA Rule 
3110(b)(7) to clarify that each member must promptly amend its written 
supervisory procedures to reflect changes in applicable securities laws 
or regulations, including FINRA and MSRB rules, and as changes occur in 
its supervisory system and has included in the proposed rule a member's 
general obligation to promptly communicate its written supervisory 
procedures and amendments. FINRA clarifies that, for purposes of 
distributing a member's written supervisory procedures amendments, 
``promptly'' means prior to the effective date of any changes (or as 
expeditiously as possible following any immediately effective changes) 
in the securities laws or regulations or FINRA and MSRB rules 
necessitating the amendments.
(4) Notification of ``Substantive'' Amendments
    In addition, the commenter requested that FINRA revise the proposed 
supplementary material's requirement to notify associated persons of 
amendments to a member's written supervisory procedures to require 
notification of only ``substantive'' amendments. FINRA declines to make 
the suggested change, especially as it is unclear what standard members 
could use to consistently identify a ``substantive'' amendment for 
these purposes. FINRA, however, has amended this provision to require 
that associated persons be notified that amendments relevant to their 
activities and responsibilities have been made to the written 
supervisory procedures.
(5) Verifying Associated Persons' Review of Amendments
    As proposed in the Initial Filing, Supplementary Material .12 
required that a member using electronic media to communicate its 
written supervisory procedures be able to verify, at least once each 
calendar year through electronic tracking, written certifications, or 
other means that associated persons have reviewed the written 
supervisory procedures. Commenters requested that FINRA eliminate the 
verification requirement or revise the provision to apply only to 
supervisory personnel.\76\ As one commenter noted, proposed FINRA Rule 
3110(b)(7) does not contain a similar requirement for the dissemination 
of hard copies of written supervisory procedures.\77\ In response, 
FINRA has deleted this requirement from proposed Supplementary Material 
.12. FINRA views such annual verification process as unnecessary in 
light of the fact that all associated persons are deemed to have 
knowledge of and are subject to a member's supervisory procedures and 
amendments irrespective of whether members verify that their associated 
persons have reviewed such procedures.
---------------------------------------------------------------------------

    \76\ SIFMA, Schwab (eliminate), NSCP (revise).
    \77\ SIFMA.
---------------------------------------------------------------------------

(j) Comments on Proposed FINRA Rule 3110(c) and Supplementary Materials 
.14-.15
    Proposed FINRA Rule 3110(c)(1) (Internal Inspections), based 
largely on NASD Rule 3010(c)(1), would retain the existing requirements 
for each member to review, at least annually, the businesses in which 
it engages and inspect each office on a specified schedule. The 
provision also would retain the existing requirement that the member's 
annual review must be reasonably designed to assist the member in 
detecting and preventing violations of, and achieving compliance with, 
applicable securities laws and regulations and FINRA and MSRB rules.
    Proposed FINRA Rule 3110(c)(3)(A) would require members to prevent 
the inspection standards required pursuant to proposed FINRA Rule 
3110(c)(1) from being reduced in any manner due to any conflicts of 
interest that may be present, including but not limited to, economic, 
commercial, or financial interests in the associated persons and 
businesses being inspected.
    Proposed FINRA Rule 3110(c)(3)(B) would generally prohibit an 
associated person from conducting a location's inspection if the person 
is either assigned to that location or is directly or indirectly 
supervised by someone assigned to that location. Proposed FINRA Rule 
3110(c)(3)(C) would provide an exception from these general 
prohibitions, while proposed Supplementary Material .15 (Exception to 
Persons Prohibited from Conducting Inspections) would set forth the 
general presumption that only a member with one office or an 
independent contractor business model will need to rely upon the 
exception.
    Proposed Supplementary Material .14 (General Presumption of Three-
Year Limit for Periodic Inspection Schedules) would set forth a general 
presumption of a three-year limit for periodic non-branch location 
inspection schedules.
(1) Reference to Inspection Standards
    One commenter objected to proposed FINRA Rule 3110(c)(3)(A)'s 
reference to FINRA Rule 3110(c)(1) on the basis that this subparagraph 
does not contain any inspection standards.\78\ However, as noted above, 
proposed FINRA Rule 3110(c)(1) would retain the requirement that a 
member's annual review of its business (which would include location 
inspections conducted during that review) must be reasonably designed 
to assist the member in detecting and preventing violations of, and 
achieving compliance with, applicable securities laws and regulations 
and with applicable FINRA and MSRB rules.\79\
---------------------------------------------------------------------------

    \78\ NSCP.
    \79\ NSCP also asks that FINRA clarify that the term ``reduced 
in any manner'' means that the frequency of internal inspections 
should not be reduced because of any conflicts of interest. FINRA 
notes that the term ``reduced in any manner'' does not have a fixed 
interpretation, but rather should be considered within the context 
of proposed FINRA Rule 3110(c)(1)'s reasonably designed inspection 
standards discussed above.

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

[[Page 40808]]

(2) Conflicts of Interest
    Some commenters suggested that proposed FINRA Rule 3110(c)(3)(A) 
would create a strict liability standard that would require a firm to 
identify and eliminate any conflicts of interest, no matter how slight, 
that would prevent a location's inspection standards from being reduced 
in any manner and suggested that the provision be amended to include a 
reasonableness standard.\80\ FINRA disagrees with commenters' strict 
liability argument. The standard does not require identification and 
elimination of all possible conflicts of interest. Rather, the proposed 
provision is intended to address conflicts of interest that would cause 
diminished inspection standards for a location that, in turn, could 
result in a failure to detect violative conduct committed at that 
location. FINRA also does not believe proposed FINRA Rule 3110(c)(3)(A) 
should include a reasonableness standard. As FINRA noted in the Initial 
Filing, this proposed requirement does not pertain to a member's 
supervisory procedures, which a member must ``reasonably design'' to 
achieve compliance with applicable federal laws and regulations and SRO 
rules, but instead defines a standard around which inspections must be 
conducted.
---------------------------------------------------------------------------

    \80\ Schwab, SIFMA.
---------------------------------------------------------------------------

(3) Associated Persons Conducting Inspections
    One commenter requested deleting proposed FINRA Rule 
3110(c)(3)(B)'s proposed restrictions prohibiting certain associated 
persons from conducting a location's inspection on the basis that the 
restrictions would otherwise force firms to remove valuable on-site 
personnel who routinely conduct inspections and carry out supervisory 
procedures in the office.\81\ As stated in the Initial Filing, FINRA 
believes that the proposed rule change would provide members with 
sufficient flexibility to conduct their inspections using only firm 
personnel. In addition, the proposed rule would provide an exception to 
the proposed restrictions for those members that cannot comply with the 
provision, either because of their size or business model. For these 
reasons, FINRA declines to make the suggested change.
---------------------------------------------------------------------------

    \81\ CAI.
---------------------------------------------------------------------------

(4) Reliance on the Limited Size and Resources Exception
    One commenter requested that FINRA amend proposed Supplementary 
Material .15 to include home or administrative office personnel 
conducting home or administrative office inspections as one of the 
enumerated situations covered by the presumption.\82\ Another commenter 
stated that it should not have to document its reasons for relying on 
the exception from the general inspection restrictions, especially when 
the documentation will not be in line with the general presumption in 
proposed Supplementary Material .15. The commenter also requested that 
FINRA revise the proposed supplementary material to provide only 
illustrative examples of when a member may rely upon the exception.\83\
---------------------------------------------------------------------------

    \82\ CAI.
    \83\ T. Rowe Price.
---------------------------------------------------------------------------

    FINRA declines to make the suggested changes. Proposed FINRA Rule 
3110(c)(3)(B) would require that any reliance on the exception from its 
general restrictions must be documented. A member's documentation of 
its reliance on the exception is crucial to understanding whether the 
member has inspection procedures that are reasonably designed to assist 
the member in detecting and preventing violations of, and achieving 
compliance with, applicable securities laws and regulations, and with 
applicable FINRA and MSRB rules.
(5) Presumption of Three-Year Limit for Periodic Inspection Schedules
    One commenter requested that FINRA eliminate proposed Supplementary 
Material .14 on the basis that it would be problematic for firms to 
meet the proposed supplementary material's presumption of a three-year 
limit for periodic non-branch location inspection schedules when 
conducting inspections for locations that, despite being used only one-
day per calendar year, would be considered non-branch locations.\84\ 
FINRA declines to make the suggested change. As noted in the Initial 
Filing, proposed Supplementary Material .14 merely establishes a three-
year presumption and provides members with the flexibility to use an 
inspection schedule period that is either shorter or longer than three 
years. If a member chooses to use a periodic inspection schedule longer 
than three years, then the proposed supplementary material would 
require the member to properly document the factors used in determining 
the appropriateness of the longer schedule.
---------------------------------------------------------------------------

    \84\ NSCP.
---------------------------------------------------------------------------

(k) Comments on Proposed FINRA Rule 3110(d)
(1) General Requirement
    Proposed FINRA Rule 3110(d)(1) (Transaction Review and 
Investigation) would require a member to have supervisory procedures to 
review securities transactions that are effected for a member's or its 
associated persons' accounts, as well as any other ``covered account,'' 
to identify trades that may violate the provisions of the SEA, its 
regulations, or FINRA rules prohibiting insider trading and 
manipulative and deceptive devices.
    One commenter suggested that the proposed rule should be limited to 
identifying insider trading and not require trades to be reviewed for 
possible violations of rules regarding ``manipulative and deceptive 
devices,'' especially as retail brokerages are already obligated under 
existing rules to review accounts for that type of activity.\85\ The 
commenter noted that SEA Rule 10b5-1(a) states that ``manipulative and 
deceptive devices'' includes, among other things, insider trading. The 
commenter argued that ``other things'' could reasonably be expected to 
encompass manipulation of security prices as described in Section 9 of 
the SEA and asserted that detecting that type of activity could be 
costly and burdensome, especially for online brokerage services that 
would be ``forced to establish electronic feeds of trading activity in 
covered accounts held at other member firms to enable the `computerized 
surveillance of account activity' in those accounts.''
---------------------------------------------------------------------------

    \85\ NSCP.
---------------------------------------------------------------------------

    The required review in proposed FINRA Rule 3110(d)(1) for ``trades 
that may violate the provisions of the Exchange Act, the rules 
thereunder, or FINRA rules prohibiting insider trading and manipulative 
and deceptive devices'' is taken from existing obligations in 
Incorporated NYSE Rule 342.21 (Trade Review and Investigation). FINRA 
believes that the continued use of this standard is appropriate for 
many of the same reasons identified by the Commission when it approved 
NYSE Rule 342.21. In approving NYSE Rule 342.21, the Commission noted 
that, among other things, the increased surveillance mandated by the 
rule ``should have a positive impact upon the compliance efforts of 
Exchange members and member organizations[.]'' \86\ In addition, the 
Commission found that ``mandating

[[Page 40809]]

such a thorough review will not only increase the possibility of 
detecting illegal trades, but also will have a deterrent effect on 
insider trading and manipulative and deceptive practices.'' \87\ FINRA 
believes that the benefits identified by the Commission, which would 
continue to be present by adopting the standards of NYSE Rule 342.21 
into the Consolidated FINRA Rulebook, would help to prevent fraudulent 
and manipulative acts and practices, promote just and equitable 
principles of trade, and protect investors, particularly since the 
provision covers the review of trading activity of the member in 
addition to its associated persons.
---------------------------------------------------------------------------

    \86\ Securities Exchange Act Release No. 25763 (May 27, 1988), 
53 FR 20925 (June 7, 1988) (Order Approving File No. SR-NYSE-87-10).
    \87\ Id.
---------------------------------------------------------------------------

    FINRA also notes that there is no obligation on members to 
establish electronic feeds of trading activity at other firms. As 
discussed in detail below, FINRA has revised the definition of 
``covered account'' to clarify a member's obligations regarding which 
accounts must be reviewed. Under the new definition, members are 
required to review (1) accounts of an associated person (and certain of 
his or her family members) that are held at or introduced by the 
member; and (2) accounts held away from the member if the associated 
person is required to disclose the account pursuant to FINRA rules 
(currently, NASD Rule 3050 (Transactions for or by Associated Persons) 
and Incorporated NYSE Rule 407 (Transactions--Employees of Members, 
Member Organizations and the Exchange)). Thus, the only outside trading 
activity members are required to review under this provision is 
activity in a covered account that is disclosed to the member pursuant 
to other FINRA rules.\88\ In addition, FINRA emphasizes that firms are 
permitted to take a risk-based approach to monitoring trading activity.
---------------------------------------------------------------------------

    \88\ FINRA notes that NASD Rule 3050(b)(2) requires the firm at 
which the trading activity is taking place to provide the member 
with duplicate confirmations, account statements, or other account 
information upon written request. Incorporated NYSE Rule 407(a) 
generally requires the member to promptly send duplicate 
confirmations and account statements.
---------------------------------------------------------------------------

    One commenter stated that the Initial Filing ``appears to infer 
that firms may be required to, at a minimum, conduct periodic reviews 
of trading'' and did not agree that this would always be the case for 
all firm personnel when using a risk-based review, as provided for 
under Rule 3110(d).\89\ In the Initial Filing, FINRA stated that a 
``member's procedures should take into consideration the nature of the 
member's business, which would include an assessment of the risks 
presented by different transactions and different departments within a 
firm. Thus, while some members may need to develop restricted lists 
and/or watch lists, other members may only need to periodically review 
employee and proprietary trading. . . . [T]here is no requirement that 
a member examine every trade of every employee or every proprietary 
trade.'' As noted, the review would be informed by the firm's business 
model, and firms may determine that certain departments or employees 
pose a greater risk and examine trading in those accounts accordingly. 
There is no implied obligation on firms as to how best to conduct the 
reviews.
---------------------------------------------------------------------------

    \89\ CAI.
---------------------------------------------------------------------------

    One commenter expressed concerns about a firm's ability to prevent 
violations of insider trading or the use of manipulative and deceptive 
devices, especially when supervising account activity occurring in an 
account held at another firm in which an associated person has a 
beneficial interest, where the firm will, at best, receive post 
transaction notification through confirmation statements.\90\ The 
commenter asked FINRA to clarify that a firm's supervisory obligations 
for brokerage accounts held outside of the member is limited to 
detecting and reporting indicia of potential insider trading or use of 
manipulative and deceptive devices.
---------------------------------------------------------------------------

    \90\ FSI.
---------------------------------------------------------------------------

    Section 15(g) of the SEA requires broker-dealers to ``establish, 
maintain, and enforce written policies and procedures reasonably 
designed * * * to prevent the misuse * * * of material, nonpublic 
information by such broker or dealer or any person associated with such 
broker or dealer.''\91\ Transaction review is one tool for firms in 
meeting this statutory obligation, in addition to steps such as 
information barriers and restricted lists that broker-dealers may 
implement to meet this requirement. Reviewing transactions can also 
help firms spot potential weaknesses in, or violations of, other 
procedures. Robust transaction review also provides a deterrent effect 
that can prevent insider trading and other manipulative or deceptive 
trading activity by associated persons. As noted above, the only 
account activity outside of the member firm that it must review under 
this provision is trading activity in certain accounts reported to the 
firm pursuant to other FINRA rules, and FINRA recognizes that the 
information firms receive regarding outside accounts may be less timely 
and less comprehensive than information firms have available with 
respect to accounts they hold or introduce.
---------------------------------------------------------------------------

    \91\ 15 U.S.C. 78o(g).
---------------------------------------------------------------------------

    One commenter requested that FINRA provide a substantial 
implementation period because implementing the new review process would 
be burdensome and time consuming, especially in light of the ``covered 
accounts'' definition.\92\ FINRA would provide firms with adequate time 
to develop and establish policies and procedures for complying with new 
rules and obligations. FINRA notes, however, that the proposed 
procedures, in large part, help implement existing obligations for 
broker-dealers pursuant to Section 15(g) of the SEA. Thus, while some 
firms may need to revise and update procedures to comply with new 
requirements, FINRA expects that many members will already have some 
level of policies and procedures in place to meet their existing 
obligations under Section 15(g) of the SEA.
---------------------------------------------------------------------------

    \92\ CAI.
---------------------------------------------------------------------------

(2) ``Covered Accounts''
    As proposed in the Initial Filing, FINRA Rule 3110(d)(3)(A) defined 
``covered account'' to include (i) any account held by the spouse, 
child, son-in-law, or daughter-in-law of a person associated with the 
member where such account is introduced or carried by the member; (ii) 
any account in which a person associated with the member has a 
beneficial interest; and (iii) any account over which a person 
associated with the member has the authority to make investment 
decisions. FINRA, however, has revised the definition as described 
below in response to comments.
    One commenter asserted that the definition of ``covered account'' 
was unduly narrow and should include an associated person's parents, 
siblings, mother-in-law, and father-in-law, as well as any life 
partner.\93\ Other commenters argued that the definition was too broad. 
For example, one commenter suggested limiting the scope of (ii) and 
(iii) to accounts introduced or carried by the member \94\ while 
another commenter suggested that FINRA use a more uniform definition 
that does not differentiate between accounts that are introduced or 
carried by the member versus those that are not.\95\ Other

[[Page 40810]]

commenters stated that the definition of ``covered account'' should not 
include accounts of associated persons' adult children or their 
spouses.\96\ One commenter stated that adult children and their spouses 
are under no obligation to provide associated persons with information 
related to their accounts introduced or carried by the member.\97\ 
Another commenter asserted that extending review to this class of 
accounts will require an unnecessary and burdensome layer of filtering 
to an already ``robust'' system of compliance with no added 
benefit.\98\
---------------------------------------------------------------------------

    \93\ PIABA.
    \94\ NSCP.
    \95\ SIFMA. This commenter also stated its belief that, for 
carrying members, an account should not be subject to review only by 
virtue of its being introduced by an unaffiliated correspondent 
broker. FINRA questions whether such accounts would generally be 
subject to review under the proposed rule because an account held by 
a carrying firm for an unaffiliated correspondent broker would 
generally not be an account of the carrying firm or one of its 
associated persons.
    \96\ Schwab, T. Rowe Price.
    \97\ Schwab.
    \98\ T. Rowe Price.
---------------------------------------------------------------------------

    In response to these comments, FINRA has revised the definition of 
``covered account.'' As amended, the transaction review requirements in 
the proposed rule would apply to two types of ``covered accounts'': (i) 
Certain accounts held at or introduced by the member and (ii) accounts 
that are reported to the member pursuant to other FINRA rules. 
Consequently, firms are under no obligation under this provision to 
review transaction information in accounts to which they do not have 
access to confirmations and account statements. In addition, FINRA has 
amended the definition of ``covered account'' to add the accounts of 
parents, siblings, fathers-in-law, mothers-in-law, and domestic 
partners if the account is held at or introduced by the member. 
Although some commenters requested that FINRA exclude accounts of adult 
children and spouses, the primary purpose of the rule is to help firms 
identify insider trading, and FINRA does not view the accounts of an 
associated person's adult children and spouses as presenting less risk 
for that type of trading activity than other accounts.\99\ Thus, for 
those accounts in the first category above (i.e., those held at or 
introduced by the member), FINRA has expanded the definition to include 
additional family members. FINRA has also clarified that the only 
accounts held away from the member (or the member's clearing firm) that 
fall within the definition of ``covered account'' are those accounts of 
associated persons disclosed to the member pursuant to other FINRA 
rules.
---------------------------------------------------------------------------

    \99\ See, e.g., Securities Exchange Act Release No. 43154 
(August 15, 2000), 65 FR 51716 (August 24, 2000) (noting that the 
Commission's experience ``indicates that most instances of insider 
trading between or among family members involve spouses, parents and 
children, or siblings''). See also Securities Exchange Act Release 
No. 42259 (December 20, 1999), 64 FR 72590, 72604 (December 28, 
1999) (noting that the inclusion of children in proposed Rule 10b5-2 
was not intended to be limited to minor children because the 
Commission's ``enforcement cases in this area typically involve 
communications between parents and adult sons or daughters''). For 
this same reason, FINRA declines to incorporate the definitions in 
NYSE Information Memo 89-17 (April 4, 1989), which excepted from the 
covered accounts outlined in NYSE Information Memo 88-21 (July 29, 
1988) those accounts held by children of employees and their spouses 
who do not reside in the same household with or are not financially 
dependent on the employee. See Schwab, SIFMA.
---------------------------------------------------------------------------

(3) Internal Investigation Reporting
    As proposed in the Initial Filing, FINRA Rule 3110(d)(2) would have 
required any member that engages in ``investment banking services,'' to 
provide reports to FINRA regarding internal investigations within ten 
business days of the initiation of an investigation, update the status 
of all ongoing investigations each quarter, and report to FINRA within 
five business days of the completion of any internal investigation. As 
described below, FINRA is retaining the definition of ``investment 
banking services'' as proposed but has substantially revised the 
reporting requirements.
(A) ``Investment Banking Services''
    The reporting requirements in proposed FINRA Rule 3110(d)(2) would 
apply only to those firms that engage in ``investment banking 
services.'' Proposed FINRA Rule 3110(d)(3)(B) defines the term 
``investment banking services'' to include, without limitation, acting 
as an underwriter, participating in a selling group in an offering for 
the issuer, or otherwise acting in furtherance of a public offering of 
the issuer; acting as a financial adviser in a merger or acquisition; 
providing venture capital or equity lines of credit or serving as 
placement agent for the issuer or otherwise acting in furtherance of a 
private offering of the issuer.\100\
---------------------------------------------------------------------------

    \100\ One commenter asked that FINRA clarify that this 
definition only applies to proposed FINRA Rule 3110 and not to other 
rules. See CAI. Paragraph (d)(3) begins with the language ``For 
purposes of this Rule''; consequently, the proposed definition is 
solely for purposes of determining those firms subject to the 
proposed reporting requirement in proposed FINRA Rule 3110(d)(2). 
FINRA notes, however, that it has proposed to use the same 
definition for purposes of the proposed research analyst conflict of 
interest rules. See Regulatory Notice 08-55 (October 2008).
---------------------------------------------------------------------------

    Several commenters to the Initial Filing requested that FINRA 
exclude certain activity from the definition of ``investment banking 
services.'' One commenter suggested that distribution activities 
undertaken by firms in connection with investment companies and 529 
plans should not fall under this definition as long as a firm engaged 
in this activity does not also engage in the functions typically seen 
as traditional underwriting activities, such as those described in the 
proposal.\101\ Other commenters requested that FINRA revise the 
definition to exclude activities such as serving as a principal 
underwriter or a selling firm of variable annuities \102\ or selling 
shares of real estate investment trusts, variable annuity contracts, 
and limited partnerships.\103\
---------------------------------------------------------------------------

    \101\ T. Rowe Price.
    \102\ CAI.
    \103\ FSI.
---------------------------------------------------------------------------

    FINRA does not believe that any of the categories of activity 
identified by the commenters should be categorically excluded from the 
definition of ``investment banking services,'' given its limited use 
for the purposes of proposed FINRA Rule 3110. All members, including 
those who engage in ``investment banking services,'' are required to 
include in their supervisory procedures a process for reviewing 
securities transactions and promptly conducting an internal 
investigation into any trade that may violate the provisions of the 
SEA, the rules thereunder, or FINRA rules prohibiting insider trading 
and manipulative and deceptive devices. The only additional requirement 
of those firms that engage in ``investment banking services'' is that 
they report information regarding their internal investigations to 
FINRA. Because individuals engaged in investment banking activities may 
have special access to material, non-public information,\104\ which 
increases the risk of insider trading by those individuals, FINRA 
believes that this additional reporting requirement is appropriate. To 
the extent the commenters are correct that certain types of 
underwriting activities do not present the same risks of insider 
trading, the instances of reporting obligations on firms that only 
engage in those activities should not be significant. To the extent 
such firms do have internal investigative actions to report, FINRA 
believes that they should be reported.
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    \104\ See, e.g., United States v. Contorinis, 692 F.3d 136, 144 
(2d Cir. 2012) (affirming co-portfolio manager's conviction for 
insider trading and securities fraud based on tips received from an 
investment banker with material, non-public information regarding 
pending merger discussions).
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(B) Reporting Requirements
    Several commenters suggested that FINRA eliminate the requirement 
that members must, within ten business days of the initiation of an 
internal investigation, file a written report and replace it with more 
targeted disclosure

[[Page 40811]]

within a more reasonable time frame, such as that in Incorporated NYSE 
Rule 351(e) (Reporting Requirements).\105\ One commenter stated that 
firms already have robust and detailed procedures for complying with 
the reporting requirements in Incorporated NYSE Rule 351(e), and 
FINRA's proposed changes would be costly and burdensome to implement 
and would not appear to yield substantial benefits, especially as 
members cannot know whether an internal investigation has viability or 
merit within ten business days.\106\
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    \105\ SIFMA, T. Rowe Price.
    \106\ SIFMA.
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    In light of the comments, FINRA has modified the reporting 
obligations for firms that are engaged in investment banking services 
in a manner that reduces the potential burden for firms, while also 
providing necessary information to assist FINRA in preventing and 
detecting violations of insider trading and use of manipulative and 
deceptive devices. First, FINRA has eliminated the requirement that 
firms file an initial report of an internal investigation within ten 
business days of its commencement and has replaced it with a quarterly 
reporting requirement. Under the amended provision, within ten business 
days of the end of each calendar quarter, a member engaged in 
investment banking services must file a written report describing each 
internal investigation initiated in the previous calendar quarter. The 
report must include the identity of the member, the date each internal 
investigation commenced, the status of each open internal 
investigation, the resolution of any internal investigation reached 
during the previous calendar quarter, and, with respect to each 
internal investigation, the identity of the security, trades, accounts, 
associated persons of the member, or associated person of the member's 
family members holding a covered account, under review, and that 
includes a copy of the member's policies and procedures required by 
proposed FINRA Rule 3110(d)(1). Also, as noted above, if a member 
subject to this requirement did not have an open internal investigation 
or either initiate or complete an internal investigation during a 
particular calendar quarter, the member would not be required to submit 
a report for that quarter. Second, FINRA has replaced the proposed 
requirement to report the completion of each internal investigation 
within five business days of its completion with a more focused 
requirement that is limited to investigations that resulted in a 
finding of violation. Under the amended provision, members engaged in 
investment banking services must, within five business days of 
completion of an internal investigation in which it was determined that 
a violation of the provisions of the SEA, the rules thereunder, or 
FINRA rules prohibiting insider trading and manipulative and deceptive 
devices had occurred, file with FINRA a written report detailing the 
completion of the investigation, including the results of the 
investigation, any internal disciplinary action taken, and any referral 
of the matter to FINRA, another SRO, the SEC, or any other federal, 
state, or international regulatory authority.
    One commenter questioned the need to file reports of investigations 
that did not result in a finding of violation, stating that the Initial 
Filing, more than the rule text, indicates that reports are required 
even if violations have not been found during the investigation.\107\ 
The commenter believed that additional reporting is unnecessary and 
exceeded the reporting requirements in FINRA Rule 4530 (Reporting 
Requirements). The commenter also asserted that FINRA has not provided 
any rationale for why firms must still file a report even when 
violations have not been found during the investigation.
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    \107\ T. Rowe Price.
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    Unlike FINRA Rule 4530, proposed FINRA Rule 3110(d) would require 
more targeted and detailed reporting. While FINRA Rule 4530(b) requires 
reporting only where a member concludes or reasonably should have 
concluded that an associated person of the member or the member itself 
has violated, among other things, any securities-related law or 
rule,\108\ the proposed reporting requirement in proposed FINRA Rule 
3110(d)(2) would require that members engaged in investment banking 
services report investigations (and results of those investigations) of 
securities transactions effected for the accounts of the member, the 
member's associated persons, and any other covered account\109\ that 
may violate the provisions of the Exchange Act, the rules thereunder, 
or FINRA rules prohibiting insider trading and manipulative and 
deceptive devices, regardless of whether a violation was ultimately 
discovered. Information regarding internal investigations that do not 
result in a finding of violation must be included in the quarterly 
report. FINRA believes that this reporting obligation is necessary to 
help protect investors and market integrity. As described in the 
Initial Filing, the rationale for filing a report when no violation has 
been found by the member is because a fact pattern that may result in a 
member concluding that no misconduct has occurred could nonetheless 
prove vital to FINRA in connecting the underlying conduct to other 
conduct about which the member may not know.
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    \108\ See FINRA Rules 4530(b) and 4530.01.
    \109\ As noted above, for purposes of proposed FINRA Rule 
3110(d), a ``covered account'' is defined to include: (1) Any 
account held by the spouse, domestic partner, child, parent, 
sibling, son-in-law, daughter-in-law, father-in-law, or mother-in-
law of a person associated with the member where such account is 
introduced or carried by the member; (2) any account introduced or 
carried by the member in which a person associated with the member 
has a beneficial interest; (3) any account introduced or carried by 
the member over which a person associated with the member has the 
authority to make investment decisions; and (4) any account of a 
person associated with a member that is disclosed to the member 
pursuant to NASD Rule 3050 or NYSE Rule 407, as applicable.
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(l) Comments on Proposed FINRA Rule 3120
    All of the comments FINRA received regarding proposed FINRA Rule 
3120 (Supervisory Control System) addressed the provisions requiring a 
member that meets a specified gross revenue threshold in the preceding 
year to include additional content in the proposed rule's annual report 
to senior management. FINRA originally proposed a gross revenue 
threshold of $150 million or more in the Initial Filing; however, as 
discussed further below, FINRA has revised the threshold to $200 
million or more.
    The required additional content includes a tabulation of the 
reports pertaining to the previous year's customer complaints and 
internal investigations made to FINRA. Also, the report must include a 
discussion of the preceding year's compliance efforts, including 
procedures and educational programs, in each of the following areas: 
(1) Trading and marketing activities; (2) investment banking 
activities; (3) antifraud and sales practices; (4) finance and 
operations; (5) supervision; and (6) anti-money laundering.
(1) Revenue Threshold
    One commenter suggested that all members be required to include the 
supplemental information in the report, not merely those members 
reporting more than $150 million in revenue.\110\ FINRA addressed this 
comment in the Initial Filing and declined to make the suggested 
change. As FINRA noted in that rule filing, FINRA believes that the 
additional information reported by

[[Page 40812]]

members meeting the gross revenue threshold, now proposed as $200 
million or more, would prove to be valuable information for FINRA's 
regulatory program, especially as Incorporated NYSE Rule 342.30's 
annual report supplemental information was a valuable tool for the NYSE 
regulatory program.\111\ Also, as FINRA noted in the Initial Filing, 
such information would be valuable compliance information for the 
senior management of the firm.
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    \110\ PIABA.
    \111\ See also Regulatory Notice 08-24 (noting that the 
supplemental information in Incorporated NYSE Rule 342.30's annual 
report was a valuable tool for the NYSE regulatory program and would 
also be valuable information for FINRA's regulatory program going 
forward).
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    FINRA, however, recognizes the burden the additional content 
requirements could place on FINRA members and, as a result, proposed 
only requiring certain members to include such additional content in 
their reports. Although FINRA considered several alternative metrics 
(e.g., number of registered persons), FINRA decided to use a gross 
revenue metric. FINRA has further attempted to balance the value of the 
information with the burden by increasing the gross revenue threshold 
from the $150 million threshold proposed in the Initial Filing to $200 
million. FINRA believes that the revised threshold strikes the 
appropriate balance as it encompasses larger dual member firms, members 
engaged in significant underwriting activities (including variable 
annuity principal underwriting and fund distributions) and substantial 
trading activities or market making business, and members with 
extensive sales platforms--approximately 160 member firms in total, for 
which the additional content requirements would provide a valuable 
resource in the context of understanding and examining those firms and 
their activities, which can generally be more complex or sizeable than 
smaller firms' activities. FINRA also took into account the fact that 
most members meeting that threshold already comply with Incorporated 
NYSE Rule 342.30's reporting requirement. Further, the metric is easily 
determined by reference to the member's most recent FOCUS reports in 
the calendar year prior to the annual report. FINRA continues to 
believe that its rationale supports the gross revenue threshold, as 
revised to $200 million, and again declines to make the suggested 
change.
(2) Additional Content Requirements
    One commenter suggested that members should have the flexibility to 
determine the content of their respective annual reports and requested 
that the additional content requirements listed above be revised as 
merely examples of additional report content.\112\ Other commenters 
suggested that the additional content topics were vague and requested 
that FINRA provide more guidance (e.g., definitions, examples) on the 
additional content requirements.\113\ In particular, one commenter 
asked whether the tabulation of reports pertaining to customer 
complaints and internal investigations was the same as the customer 
complaint data for FINRA Rule 4530.\114\
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    \112\ T. Rowe Price.
    \113\ CAI, FSI.
    \114\ CAI.
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    FINRA disagrees with the commenters' suggestions that the 
supplementary information topics are vague and require examples or 
definitions. The topics refer to specific components common to a 
member's business. In addition, as FINRA noted in the Initial Filing, 
with the exception of risk management (which is no longer included, as 
discussed below), the categories listed above are incorporated from the 
annual report content requirements of Incorporated NYSE Rule 342.30 
(Annual Report and Certification) and are familiar to many of the firms 
that would be required to comply with proposed FINRA Rule 3120's 
additional content requirements. Also, FINRA made clear in the Initial 
Filing that the proposed requirement to include a tabulation of 
information provided to FINRA regarding customer complaints and 
internal investigations was not duplicative of existing requirements in 
FINRA Rule 4530, as each rule serves a distinct purpose. Whereas FINRA 
Rule 4530 requires reporting certain information to FINRA, the 
requirement in proposed FINRA Rule 3120 covers information required to 
be provided to a firm's senior management. To that end, however, firms 
may use the information reported to FINRA pursuant to FINRA Rule 4530, 
as well as other relevant information reported to FINRA pursuant to 
other regulatory requirements (e.g., investigation information reported 
to FINRA pursuant to proposed FINRA Rule 3110(d)), to prepare the 
tabulation required by proposed FINRA Rule 3120.
(3) Risk Management
    As proposed in the Initial Filing, FINRA Rule 3120 would have 
required that a member meeting the applicable gross revenue threshold 
must include a discussion of the preceding year's compliance efforts in 
the area of risk management. At least one commenter suggested that 
FINRA eliminate this requirement since the term ``risk management,'' as 
proposed, appears to encompass specific control functions for various 
types of risk (e.g., market, credit, liquidity, operational). The 
commenter asserted that, because there are no SEC or FINRA rules 
relating to ``risk management'' as there are with finance and 
operations, the compliance departments generally do not have programs 
to assess the performance of that function and supervisors so 
designated for purposes of FINRA rules are not therefore charged with 
supervision of compliance efforts in the area of risk management. 
Alternatively, the commenter suggested that FINRA acknowledge that 
``risk management'' relates solely to ``compliance risk,'' which would 
be covered by the firm's compliance department.\115\ Another commenter 
also stated that the risk management topic appears to fall outside of 
the responsibilities of many compliance departments and requested that 
FINRA confirm whether chief compliance officers can rely on such items 
as certifications and representations from managers of areas not under 
the purview of, or routinely overseen by, the compliance department in 
completing and submitting the annual report.\116\
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    \115\ SIFMA.
    \116\ NSCP.
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    FINRA originally proposed the requirement for the purpose of 
providing senior management with a narrative specifically reflecting 
whether a member is effectively supervising and managing its business 
risks. However, in response to commenters' ongoing concerns regarding 
the role of compliance departments with respect to risk management 
activities, FINRA is eliminating risk management from the additional 
content requirements under proposed FINRA Rule 3120 and will consider 
whether to address separately members' risk management practices. Based 
on its examination and enforcement experience, FINRA has found that a 
strong risk management program mitigates a member's potential 
compliance problems.\117\
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    \117\ See e.g., Regulatory Notice 10-57 (November 2010) 
(guidance on developing and maintaining robust funding and liquidity 
risk management practices to prepare for adverse circumstances); 
Notice to Members 99-92 (November 1999) (SEC, NASD Regulation, and 
NYSE Issue Joint Statement on Broker/Dealer Risk Management 
Practices) (emphasizing the importance of maintaining an appropriate 
risk management system and providing examples of weaknesses and 
strengths in various broker-dealers' risk management policies and 
practices).

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[[Page 40813]]

(m) Comments on Proposed FINRA Rule 3170
    SIFMA requested that FINRA confirm whether it would continue to 
maintain and disseminate the ``Disciplined Firms List'' once new FINRA 
Rule 3170 (Tape Recording of Registered Persons by Certain Firms), 
which replaces NASD Rule 3010(b)(2) (the ``Taping Rule''), becomes 
effective. Currently, FINRA provides a ``Disciplined Firms List'' 
identifying those firms that meet NASD Rule 3010(b)(2)'s definition of 
``disciplined firm.'' This list assists members that are required to 
establish special supervisory procedures, including the tape recording 
of conversations, when they have hired more than a specified percentage 
of registered persons from firms that meet the Taping Rule's definition 
of ``disciplined firm.'' FINRA intends to continue to maintain the list 
to assist members in meeting their supervisory obligations under FINRA 
Rule 3170.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) by order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-FINRA-2013-025 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-FINRA-2013-025. This 
file number should be included on the subject line if email 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 Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of FINRA. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-FINRA-2013-025 and should be 
submitted on or before July 29, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\118\
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    \118\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2013-16231 Filed 7-5-13; 8:45 am]
BILLING CODE 8011-01-P