[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Notices]
[Pages 62831-62834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24568]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70612; File No. SR-FINRA-2013-025]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Amendment No. 1 and Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change, as Modified by Amendment No. 1, To Adopt Rules 
Regarding Supervision in the Consolidated FINRA Rulebook

October 4, 2013.

I. Introduction

    On June 21, 2013, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to adopt consolidated FINRA 
supervision rules.\3\ The proposed rule change was published for 
comment in the Federal Register on July 8, 2013.\4\ The Commission 
received seventeen (17) individual comment letters in response to the 
proposed rule change and five hundred fifty five (555) submissions of a 
form comment letter (``Letter Type A'').\5\ On August 22, 2013, FINRA 
extended the time period in which the Commission must approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to approve or disapprove the proposed 
rule change to October 4, 2013. On October 2, 2013, FINRA responded to 
the comments \6\ and filed Amendment No. 1 to the proposed rule change. 
The Commission is publishing this notice

[[Page 62832]]

and order to solicit comments on Amendment No. 1 from interested 
persons and to institute proceedings pursuant to Section 19(b)(2)(B) of 
the Act \7\ to determine whether to approve or disapprove the proposed 
rule change, as modified by Amendment No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On June 10, 2011, FINRA filed with the SEC a proposed rule 
change to adopt the consolidated FINRA supervision rules (``Initial 
Filing''), which addressed the comments received in response to 
FINRA's Regulatory Notice 08-24. See Securities Exchange Act Release 
No. 64736 (June 23, 2011), 76 FR 38245 (June 29, 2011) (File No. SR-
FINRA-2011-028). FINRA withdrew the Initial Filing on September 27, 
2011. 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).
    \4\ See Exchange Act Release No. 69902 (July 1, 2013), 78 FR 
40792 (July 8, 2013) (Notice of Filing of a Proposed Rule Change to 
Adopt Rules Regarding Supervision in the Consolidated FINRA 
Rulebook) (``Notice of Filing''). The comment period closed on July 
29, 2013.
    \5\ Letters from Steven B. Caruso, Esq., Maddox Hargett Caruso, 
P.C., to Elizabeth M. Murphy, Secretary, SEC, dated July 12, 2013 
(``Caruso''); Norman B. Arnoff, Esq., to Elizabeth M. Murphy, 
Secretary, SEC, dated July 19, 2013 (``Arnoff''); J.S. 
Brandenburger, Registered Principal, FSC Securities Corporation, to 
Elizabeth M. Murphy, Secretary, SEC, dated July 25, 2013 
(``Brandenburger''); Steve Putnam, Financial Advisor, Raymond James 
Financial Services, to Elizabeth M. Murphy, Secretary, SEC, dated 
July 25, 2013 (``Putnam''); Nina Schloesser McKenna, General 
Counsel, Cetera Financial Group, Inc., to Elizabeth M. Murphy, 
Secretary, SEC, dated July 29, 2013 (``Cetera''); Scott Cook, Senior 
Vice President, Chief Compliance Officer, Charles Schwab & Co., 
Inc., to Elizabeth M. Murphy, Secretary, SEC, dated July 29, 2013 
(``Schwab''); Clifford Kirsch and Eric A. Arnold, Sutherland Asbill 
& Brennan LLP, on behalf of the Committee of Annuity Insurers, to 
Elizabeth M. Murphy, Secretary, SEC, dated July 29, 2013 (``CAI''); 
David T. Bellaire, Esq., Executive Vice President & General Counsel, 
Financial Services Institute, to Elizabeth M. Murphy, Secretary, 
SEC, dated July 29, 2013 (``FSI''); Howard Spindel, Senior Managing 
Director, and Cassondra E. Joseph, Managing Director, Integrated 
Management Solutions USA, LLC, to Elizabeth M. Murphy, Secretary, 
SEC, dated July 29, 2013 (``IMS''); Tamara K. Salmon, Senior 
Associate Counsel, Investment Company Institute, to Elizabeth M. 
Murphy, Secretary, SEC, dated July 29, 2013 (``ICI''); Susanne 
Denby, Chief Compliance Officer, NFP Securities, Inc., to Elizabeth 
M. Murphy, Secretary, SEC, dated July 29, 2013 (``NFP''); A. Heath 
Abshure, President and Arkansas Securities Commissioner, North 
American Securities Administrators Association, Inc., to Elizabeth 
M. Murphy, Secretary, SEC, dated August 6, 2013 (``NASAA''); Scott 
C. Ilgenfritz, President, Public Investors Arbitration Bar 
Association, to Elizabeth M. Murphy, Secretary, SEC, dated July 29, 
2013 (``PIABA''); Ira D. Hammerman, Senior Managing Director and 
General Counsel, Securities Industry and Financial Markets 
Association, to Elizabeth M. Murphy, Secretary, SEC, dated July 29, 
2013 (``SIFMA''); Pamela Albanese, Legal Intern, and Christine 
Lazaro, Esq., Acting Director, Securities Arbitration Clinic of St. 
John's University School of Law, to Elizabeth M. Murphy, Secretary, 
SEC, dated July 29, 2013 (``St. John's''); Brian P. Sweeney, Law 
Office of Brian P. Sweeney, to Elizabeth M. Murphy, Secretary, SEC, 
dated July 29, 2013 (``Sweeney''); Robert J. McCarthy, Director of 
Regulatory Policy, Wells Fargo Advisors, LLC, to Elizabeth M. 
Murphy, Secretary, SEC, dated July 29 2013 (``Wells Fargo''); see 
also Memorandum from the Division of Trading and Markets, SEC, dated 
August 29, 2013 (memorializing an August 5, 2013 conference call 
between SEC staff and Gary Goldsholle and Michael Post of the 
Municipal Securities Rulemaking Board (``MSRB'') (``MSRB Memo'') to 
discuss FINRA's recently proposed rule change to adopt the proposed 
consolidated supervision rules).
    \6\ See Letter from Patricia Albrecht, Assistant General 
Counsel, FINRA, to Elizabeth M. Murphy, Secretary, Commission, dated 
October 2, 2013 (``Response'').
    \7\ 15 U.S.C. 78s(b)(2)(B).
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    Institution of proceedings does not indicate that the Commission 
has reached any conclusions with respect to the proposed rule change, 
nor does it mean that the Commission will ultimately disapprove the 
proposed rule change. Rather, as discussed below, the Commission seeks 
additional input from interested parties on the changes to the proposed 
rule change, as set forth in Amendment No. 1.

II. Description of the Proposed Rule Change and Summary of Comments

    As further described in the Notice of Filing, FINRA proposes to 
adopt consolidated FINRA broker-dealer supervision rules. As part of 
the process of developing a new consolidated rulebook (``Consolidated 
FINRA Rulebook''),\8\ 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).
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    \8\ The current FINRA rulebook consists of: (1) FINRA Rules; (2) 
NASD Rules; and (3) rules incorporated from the New York Stock 
Exchange (``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. 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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    In general, the commenters to the Notice of Filing supported the 
proposal. Commenters, however, raised concerns regarding various 
aspects of the proposed rules, including, among others:
     References to MSRB rules; \9\
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    \9\ ICI. See also MSRB Memo.
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     the scope of the definition of the term ``covered 
accounts''; \10\
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    \10\ Brandenburger, CAI, FSI, ICI, IMS, Letter Type A, Putnam, 
SIFMA.
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     application of a risk-based approach; \11\
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    \11\ Cetera, ICI, IMS, SIFMA.
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     the conditions for establishing a one person office of 
supervisory jurisdiction (``OSJ''); \12\
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    \12\ Brandenburger, Cetera, IMS, Letter Type A, Putnam.
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     the requirements and presumptions relating to a single 
principal supervising multiple OSJs; \13\
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    \13\ CAI, Cetera, FSI, IMS, Wells Fargo.
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     the documentation requirements relating to written and 
oral complaints; \14\ and
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    \14\ Caruso, NASAA, PIABA, St John's.
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     the lack of a cost benefit analysis.\15\
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    \15\ Brandenburger, FSI, IMS, Letter Type A, Putnam.
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    FINRA addressed many of these comments by modifying the proposed 
rules in Amendment No. 1, as described below. Additionally, FINRA 
responded to these and other comments in its Response.\16\
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    \16\ See supra, note 6.
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III. Description of Amendment No. 1

    FINRA's proposed changes in response to comments, as set forth in 
Amendment No. 1 are summarized below.
    First, FINRA is proposing to delete the references to MSRB rules in 
proposed FINRA Rules 3110(a), (b)(1), (b)(4), (b)(6), (b)(7), (c)(1), 
3110.06, 3110.12, 3120(a)(1), 3150(c), and 3170(b)(3) in light of a 
member's separate obligation to comply with MSRB Rule G-27 
(Supervision).
    Second, FINRA is proposing to delete proposed FINRA Rule 3110.03 
(One-Person OSJs), which expressly provided that the registered 
principal at a one-person OSJ (``on-site principal'') must be under the 
effective supervision and control of another appropriately registered 
principal (referred to as a ``senior principal'') who would be 
responsible for conducting on-site supervision of the one-person OSJ on 
a regular periodic schedule to be determined by the member.\17\ The 
proposed supplementary material required that the designated senior 
principal be responsible for supervising the activities of the on-site 
principal at the one-person OSJ and conduct on-site supervision of the 
one-person OSJ on a regular periodic schedule to be determined by the 
member. FINRA believes that OSJs conduct critical functions and one-
person OSJs present unique supervisory challenges. However, FINRA has 
decided the best course is to eliminate the proposed supplementary 
material from the proposed rule. Importantly, FINRA believes that one-
person OSJ locations where the on-site principal engages in sales-
related activities that trigger OSJ designation should be subject to 
scrutiny, and firms should conduct focused reviews of such locations 
because of the possible conflicts of interest that may arise.
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    \17\ 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 
description of the proposed changes in Amendment No. 1 employs the 
new proposed numbers in all instances.
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    Third, FINRA is proposing to revise proposed FINRA Rule 3110.03 
(Supervision of Multiple OSJs by a Single Principal) to use the term 
``on-site principal'' consistently throughout the provision. As 
originally proposed, FINRA Rule 3110.03 used the terms ``on-site 
supervisor'' and ``designated principal'' interchangeably throughout 
the provision; however, FINRA clarified in the rule filing that the two 
terms referred to one person. Also, FINRA is proposing to revise 
proposed FINRA Rule 3110.03 to replace the presumption that assigning 
one principal to be the on-site principal at more than two OSJs is 
unreasonable with a general statement that assigning a principal to 
more than one OSJ will be subject to scrutiny.
    Fourth, FINRA is proposing to amend proposed FINRA Rule 3110.05 
(Risk-based Review of Member's Investment Banking and Securities 
Business) to clarify that a member is not required to conduct detailed 
reviews of each transaction required to be reviewed pursuant to 
proposed FINRA Rule 3110(b)(2) (Review of Member's Investment Banking 
and Securities Business) if a member is using a reasonably designed 
risk-based review system that provides a member with sufficient 
information that permits the member to focus on the areas that pose

[[Page 62833]]

the greatest numbers and risks of violation.
    Fifth, FINRA is proposing to replace the term ``correspondence with 
the public'' used in proposed FINRA Rules 3110(b)(4) (Review of 
Correspondence and Internal Communications), 3110.06 (Risk-based Review 
of Correspondence and Internal Communications), 3110.07 (Evidence of 
Review of Correspondence and Internal Communications), and 3110.08 
(Delegation of Correspondence and Internal Communication Review 
Functions) with ``correspondence'' to be consistent with FINRA Rule 
2210's (Communications with the Public) definition and use of the term 
``correspondence.''
    Sixth, FINRA is proposing to revise proposed FINRA Rule 
3110(b)(6)(D) to clarify that the provision does not create a strict 
liability obligation requiring identification and elimination of all 
conflicts of interest with respect to an associated person being 
supervised by a member's supervisory personnel. As revised, proposed 
FINRA Rule 3110(b)(6)(D) requires that a member have procedures 
reasonably designed to prevent the supervisory system required pursuant 
to proposed FINRA Rule 3110(a) from being compromised due to the 
conflicts of interest that may be present with respect to the 
associated person being supervised, including the position of such 
person, the revenue such person generates for the firm, or any 
compensation that a supervisor may derive from an associated person 
being supervised.
    Seventh, FINRA is proposing to revise proposed FINRA Rule 
3110(c)(2)(D) to require a member to: (1) Identify in its written 
supervisory procedures or in the location's written inspection report 
the activities enumerated in FINRA Rule 3110(c)(2)(A) that the member 
does not engage in at a particular location; and (2) document in its 
written supervisory procedures or within that location's written 
inspection report that supervisory policies and procedures must be in 
place for those enumerated activities at that location before the 
member can engage in them. As initially proposed, members would have 
been required to identify such activities in a location's written 
inspection report; thus, the proposed revisions provide firms with 
additional flexibility in complying with proposed FINRA Rule 
3110(c)(2)(D).
    Eighth, FINRA is proposing to revise proposed FINRA Rule 
3110(c)(3)(A) to clarify that the provision does not create a strict 
liability obligation requiring identification and elimination of all 
conflicts of interest with respect to a location's inspections. As 
revised, proposed FINRA Rule 3110(c)(3)(A) requires that a member have 
procedures reasonably designed to prevent the effectiveness of the 
inspections required pursuant to proposed FINRA Rule 3110(c)(1) from 
being compromised due to the conflicts of interest that may be present 
with respect to the location being inspected, including but not limited 
to, economic, commercial, or financial interests in the associated 
persons and businesses being inspected.
    Ninth, FINRA is proposing to revise proposed FINRA Rules 3110.10 
(Supervision of Supervisory Personnel) and 3110.14 (Exception to 
Persons Prohibited from Conducting Inspections) to delete the term 
``only'' in both supplementary materials, to further clarify that the 
provisions provide non-exclusive examples of situations where the 
exceptions generally would apply.
    Tenth, FINRA is proposing to revise the definition of ``covered 
account'' in proposed FINRA Rule 3110(d) (Transaction Review and 
Investigation) to align the definition with existing NYSE guidance. 
Under the revised definition, ``covered account'' would include any 
account introduced or carried by the member that is held by: (1) The 
spouse of a person associated with the member; (2) a child of the 
person associated with the member or such person's spouse, provided 
that the child resides in the same household as or is financially 
dependent upon the person associated with the member; (3) any other 
related individual over whose account the person associated with the 
member has control; or (4) any other individual over whose account the 
associated person of the member has control and to whose financial 
support such person materially contributes. FINRA also is proposing to 
revise proposed FINRA Rule 3110(d) to include the phrase ``reasonably 
designed'' to acknowledge more clearly that firms with different 
business models may adopt different procedures and practices. As 
amended, the proposed rule requires each member to ``include in its 
supervisory procedures a process for the review of securities 
transactions reasonably designed to identify trades that may violate 
the provisions of the Exchange Act, the rules thereunder, or FINRA 
rules prohibiting insider trading and manipulative and deceptive 
devices.''
    Eleventh, proposed FINRA Rule 3120 (Supervisory Control System) 
requires a member to test and verify the member's supervisory 
procedures and 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. The proposed rule also requires a 
member that reported $200 million or more in gross revenue on its FOCUS 
reports in the prior calendar year to include additional content in the 
report it submits to senior management. FINRA is proposing to revise 
proposed FINRA Rule 3120(b) to clarify that a member complying with the 
additional content requirement must include the additional content in 
its report only to the extent applicable to the member's business.

IV. Proceedings To Determine Whether To Approve or Disapprove SR-FINRA-
2013-025 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act to determine whether the proposed rule change 
should be approved or disapproved.\18\ Institution of such proceedings 
appears appropriate at this time in view of the legal and policy issues 
raised by the proposal. As noted above, institution of proceedings does 
not indicate that the Commission has reached any conclusions with 
respect to any of the issues involved. Rather, the Commission seeks and 
encourages interested persons to comment on the changes to the proposed 
rule change as set forth in Amendment No. 1 and provide the Commission 
with arguments to support the Commission's analysis as to whether to 
approve or disapprove the proposal, as amended.
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    \18\ 15 U.S.C. 78s(b)(2). Section 19(b)(2)(B) of the Act 
provides that proceedings to determine whether to disapprove a 
proposed rule change must be concluded within 180 days of the date 
of publication of notice of the filing of the proposed rule change. 
The time for conclusion of the proceedings may be extended for up to 
an additional 60 days if the Commission finds good cause for such 
extension and publishes its reasons for so finding or if the self-
regulatory organization consents to the extension.
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    Pursuant to Section 19(b)(2)(B) of the Exchange Act,\19\ the 
Commission is providing notice of the grounds for disapproval under 
consideration. In particular, Section 15A(b)(6) of the Exchange Act 
\20\ 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. In addition, Section 15A(b)(9) of 
the Exchange Act \21\ requires that FINRA rules not impose any 
unnecessary or inappropriate burden on competition.
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    \19\ 15 U.S.C. 78s(b)(2)(B).
    \20\ 15 U.S.C. 78o-3(b)(6).
    \21\ 15 U.S.C. 78o-3(b)(9).

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[[Page 62834]]

    The Commission believes FINRA's proposed rule change, as amended, 
raises questions as to whether it is consistent with the requirements 
of Section 15A(b)(6) and 15A(b)(9) of the Exchange Act.

V. Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
changes to the proposed rule change as set forth in Amendment No. 1, as 
well as any others they may have identified with the proposed rule 
change, as amended. In particular, the Commission invites the written 
views of interested persons concerning whether the proposed rule 
change, as modified by Amendment No. 1, is inconsistent with Section 
15A(b)(6) or any other provision of the Exchange Act, or the rules and 
regulations thereunder.
    Although there do not appear to be any issues relevant to approval 
or disapproval which would be facilitated by an oral presentation of 
views, data, and arguments, the Commission will consider, pursuant to 
Rule 19b-4, any request for an opportunity to make an oral 
presentation.\22\ Interested persons are invited to submit written 
data, views, and arguments by October 28, 2013 concerning Amendment No. 
1 and regarding whether the proposed rule change, as modified by 
Amendment No. 1, should be approved or disapproved. Any person who 
wishes to file a rebuttal to any other person's submission must file 
that rebuttal by November 12, 2013. Comments may be submitted by any of 
the following methods:
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    \22\ Section 19(b)(2) of the Exchange Act, as amended by the 
Securities Acts Amendments of 1975, Pub. L. 94-29, 89 Stat. 97 
(1975), grants the Commission flexibility to determine what type of 
proceeding--either oral or notice and opportunity for written 
comments--is appropriate for consideration of a particular proposal 
by a self-regulatory organization. See Securities Acts Amendments of 
1975, Report of the Senate Committee on Banking, Housing and Urban 
Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 
30 (1975).
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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 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principle 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 publicly available.
    All submissions should refer to File Number SR-FINRA-2013-025 and 
should be submitted on or before October 28, 2013. If comments are 
received, any rebuttal comments should be submitted by November 12, 
2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12); 17 CFR 200.30-3(a)(57).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-24568 Filed 10-21-13; 8:45 am]
BILLING CODE 8011-01-P