[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Notices]
[Pages 76341-76344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29897]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71042; File No. SR-FINRA-2013-052]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to 
Alternative Display Facility New Entrant

December 11, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'' or ``SEA'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that, on December 2, 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 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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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to add a new entrant to the Alternative Display 
Facility (``ADF'').
    The new ADF entrant, LavaFlow (``FLOW'') has prepared a summary of 
its policies and procedures regarding access to its quotations in an 
NMS stock displayed on the ADF, and a summary of its proposed fees for 
such access, which was filed as Exhibit 3.
    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
    The ADF is a quotation collection and trade reporting facility that 
provides ADF Market Participants (i.e., ADF-registered market makers or 
electronic communications networks (``ECNs'')) \3\ the ability to post 
quotations, display orders and report transactions in NMS stocks \4\ 
for submission to the Securities Information Processors for 
consolidation and dissemination to vendors and other market 
participants. In addition, the ADF delivers real-time data to FINRA for 
regulatory purposes, including enforcement of requirements imposed by 
SEC Regulation NMS.\5\
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    \3\ See FINRA Rule 6220(a)(3).
    \4\ See 17 CFR 242.600.
    \5\ See 17 CFR 242.600.
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    The ADF was initially approved by the Commission on July 24, 2002, 
in connection with the SEC's approval of SuperMontage and Nasdaq's 
registration as a national securities exchange.\6\ At that time, the 
ADF was approved for Nasdaq-listed securities for a nine-month pilot 
period to provide FINRA members with an alternative to the Nasdaq 
systems for reporting quotations and transactions in Nasdaq UTP Plan 
securities.
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    \6\ See Securities Exchange Act Release No. 46249 (July 24, 
2002), 67 FR 49822 (July 31, 2002) (Order Approving File No. SR-
NASD-2002-97); see also Notice to Members 02-45 (August 2002).
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    In 2005, the Commission adopted Regulation NMS, which included the 
Order Protection Rule.\7\ With the adoption of the Order Protection 
Rule, Regulation NMS established trade-through protection for all NMS 
stocks.\8\ Since the ADF is a display-only facility, a market 
participant would have to access the actual ADF participant that posted 
the protected quotation on the ADF in order to comply with the Order 
Protection Rule.\9\ In the NMS Adopting Release, the Commission noted 
that market participants could potentially access an ADF participant 
either through direct access or through a private network.\10\
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    \7\ The Order Protection Rule provides that a trading center 
``shall establish, maintain, and enforce written policies and 
procedures that are reasonably designed to prevent trade-throughs on 
that trading center of protected quotations in NMS stocks'' that do 
not fall within one of the exceptions set forth in the rule. See 17 
CFR 242.611.
    \8\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37501 (June 29, 2005) (``NMS Adopting 
Release'').
    \9\ NMS Adopting Release, 70 FR at 37541.
    \10\ NMS Adopting Release, 70 FR at 37543.
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    Given that market participants could be required to access multiple 
ADF participants to comply with the Order Protection Rule, the 
Commission formulated Rule 610 under SEC Regulation NMS to ensure that 
market participants would be afforded ``fair and efficient access'' to 
such trading centers.\11\ Accordingly, Rule 610 requires that a trading 
center displaying quotations in an NMS stock through an SRO display-
only facility (such as the ADF) ``provide a level and cost of access to 
such quotations that is substantially equivalent to the level and cost 
of access to quotations displayed by SRO trading facilities in that 
stock.'' \12\ Rule 610 also requires that a trading center displaying 
quotations in an NMS stock through an SRO display-only facility not 
impose unfairly discriminatory terms that prevent or inhibit any person 
from obtaining efficient access to such quotations through a member, 
subscriber, or customer of the trading center.\13\
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    \11\ NMS Adopting Release, 70 FR at 37549.
    \12\ 17 CFR 242.610(b)(1).
    \13\ 17 CFR 242.610(b)(2).
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    In articulating this standard, the Commission noted that the level 
and cost of access would ``encompass both

[[Page 76342]]

(1) the policies, procedures, and standards that govern access to 
quotations of the trading center, and (2) the connectivity through 
which market participants can obtain access and the cost of such 
connectivity.'' \14\ The nature and cost of connections for market 
participants seeking to access the ADF participant's quotations would 
need to be substantially equivalent to the nature and cost of 
connections to SRO trading facilities.\15\
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    \14\ NMS Adopting Release, 70 FR at 37549.
    \15\ NMS Adopting Release, 70 FR at 37549.
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    In evaluating whether ADF participants are meeting the access 
standards under Rule 610, i.e., that the cost of accessing an ADF 
participant is substantially equivalent to the cost of accessing an SRO 
trading facility, the Commission stated that the NASD (now FINRA) would 
act as a gatekeeper in this process. As such, FINRA would be required 
to submit a proposed rule change pursuant to Section 19(b) of the Act 
in order to add a new ADF participant.\16\ Since the second quarter of 
2010, there have been no ADF Market Participants.
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    \16\ NMS Adopting Release, 70 FR at 37549.
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    Consistent with the requirements of Rule 610 and the NMS Adopting 
Release, FINRA is submitting this proposed rule change so that FLOW may 
become an ADF Market Participant. As set forth in its summary, FLOW has 
proposed policies and procedures that are designed to ensure that the 
level of access to its quotations is substantially equivalent to the 
level of access to quotations displayed by SRO trading facilities in 
that stock, and to ensure that FLOW does not impose unfairly 
discriminatory terms that prevent or inhibit any person from obtaining 
efficient access to such quotations.
    Specifically, firms wishing to access FLOW liquidity may connect in 
a variety of ways. Firms that are FLOW subscribers may connect to FLOW 
via the FLOW Smart Order Router, or through the FLOW Gateway. Non-FLOW 
subscribers may connect via a third party vendor or connectivity 
provider, or alternatively through an exchange or a third-party broker-
dealer subscriber. FLOW allows a subscriber to determine its level of 
connectivity, and FLOW does not have any tiers or rules regarding 
execution of orders based upon Market Participant Identification. No 
participant is given any priority in the FLOW matching engine. One 
feature of FLOW is customer anonymity from matching orders through 
clearing executions, and the FLOW matching engine is blind to the 
identity of the participant, with the exception of orders using the 
anti-internalization feature. FLOW also has policies and procedures 
that require FLOW to respond to orders by non-subscribers as promptly 
as it responds to orders by subscribers, and have non-subscribers be 
able to automatically execute against quotations displayed by the 
system.
    As set forth in its summary, FLOW has also established, and 
regularly maintains, policies and procedures designed to maintain a 
linkage with at least one SRO trading facility, or SRO display-only 
facility. It also has policies and procedures to transmit to such SRO 
trading facility or SRO display-only facility for display either the 
best priced order of those orders entered by OTC market makers and 
exchange market makers for those securities in which they make markets 
(or act as specialists) or the best priced orders entered by all ECN 
subscribers. FLOW has policies and procedures to provide, to any broker 
or dealer, access to such orders that is functionally equivalent to the 
access that is generally available for quotes displayed by a SRO 
trading facility or, for orders displayed in an SRO display-only 
facility, a level and cost of access that is substantially similar to 
the level and cost of access to quotations displayed by SRO trading 
facilities in that stock. FLOW also has established and maintains 
policies and procedures to conduct regular periodic system capacity 
reviews and tests to ensure future capacity, and to identify potential 
weaknesses and reduce the risks of system failures and threats to 
system integrity. FLOW's policies and procedures also require 
continuous monitoring of its connections with SRO trading facilities or 
SRO display-only facilities and in the event that FLOW loses connection 
with any SRO trading facility or SRO display-only facility FLOW will 
cancel all quotes previously published by the system to that facility 
and notify its subscribers of such interruption.
    FLOW also has policies and procedures, also set forth in its 
summary, that are designed to ensure that the cost of access to its 
quotations is substantially equivalent to the cost of access to 
quotations displayed by SRO trading facilities in that stock, and that 
FLOW will not charge a fee for accessing its quotations that exceeds 
the maximum fee permitted by Rule 610 of Regulation NMS.\17\ The cost 
of accessing the quotation of a trading center may consist of several 
distinct costs, such as port fees, market data fees, general 
connectivity fees, and transaction fees, and FLOW proposes to assess 
costs in these respects that are substantially equivalent to the costs 
assessed by SRO trading facilities.
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    \17\ With respect to the requirement that the nature and cost 
for market participants seeking to access an ADF Trading Center need 
to be substantially equivalent to the nature and cost of connection 
to SRO trading facilities, FINRA notes that the Commission stated in 
the NMS Adopting Release that this requirement does not apply on an 
absolute basis, but rather applies on a per-transaction basis to 
reflect the costs relative to the ADF participant's trading volume. 
See NMS Adopting Release, 70 FR at 37549 n.449. Based on FLOW's 
representations, FINRA believes that FLOW's proposed level and cost 
of access to its quotations is substantially equivalent to the level 
and cost of access to quotations displayed by an SRO trading 
facility, both in absolute and relative terms.
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    With respect to port fees, FLOW charges port fees to subscribers 
based upon the number of ports requested. FLOW provides one port per 
subscriber in each of its data centers (primary and secondary) for 
free, and reserves the right to charge a port fee for all subsequent 
connections. Fee-eligible port connections may be charged $400 per 
connection, per month. In comparison, exchange port fees on average 
range from $100 to $1,000 per port, per month.\18\
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    \18\ For example, The Chicago Board Options Exchange, 
Incorporated Stock Exchange (``CBSX'') assesses a fee of $100 per 
month per FIX port. See http://www.cboe.com/publish/cbsxfeeschedule/cbsxfeeschedule.pdf. BATS Exchange, Inc. (``BATS'') assesses a 
monthly port fee of $400 for certain ports. See http://cdn.batstrading.com/resources/regulation/rule_book/BZX_Fee_Schedule.pdf. EDGA Exchange, Inc. assesses a monthly port fee of 
$500. See https://www.directedge.com/Portals/0/01Trading/EDGA%20Fee%20Schedule/2013/EDGA.11.2013.pdf. CBSX assess a fee of 
$1,000 per month for a 10-gigabit network access port. Id.
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    With respect to other connectivity fees, FLOW is already connected 
in its production environment to most outbound routers via intranets, 
cross connects and other direct connections. FLOW has represented that 
the cost to establish connections to FLOW for users of these services 
and for individual firms not using these services should be 
substantially the same as the costs to connect to an exchange. Both 
FLOW subscribers and non-subscribers are responsible for paying for 
their own external telecommunications costs to connect to FLOW, and 
FLOW has represented that such fees would be equivalent to the costs to 
connect to any other trading center, such as an exchange.
    With respect to market data fees, FLOW has represented that it does 
not have any plans to charge its subscribers or non-subscribers for 
access to FLOW's market data in either of its two forms of distribution 
(TCP or multicast). In comparison, market data fees vary by exchange, 
with some exchanges charging fees that range from under

[[Page 76343]]

$100 per month to $750 to $2,500, and some exchanges charging $5,000 
for external distribution.\19\
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    \19\ For example, The NASDAQ Stock Market LLC (``Nasdaq'') 
assesses a user fee of $70 per month for professional and corporate 
subscribers and $14 for non-professional subscribers to its 
TotalView and OpenView products for Nasdaq issues. See http://www.nasdaqtrader.com/Trader.aspx?id=DPUSdata. NYSE Arca, Inc. 
charges a monthly access fee of $750 for its ArcaBook data feed. See 
http://www.nyxdata.com/arcabook. BATS assesses a fee of $5,000 per 
month for external distribution of its PITCH feed. See http://cdn.batstrading.com/resources/regulation/rule_book/BZX_Fee_Schedule.pdf.
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    Finally, exchanges currently charge a range of other fees, 
including but not limited to membership fees, trading rights fees, risk 
gateway fees and other miscellaneous fees. FLOW has represented that it 
does not assess similar charges.
    With respect to the specific fees for accessing protected 
quotations that it has displayed on the ADF, the FLOW fee structure is 
currently a maker-taker model where FLOW pays a rebate for added 
executed liquidity and charges a fee for removed liquidity. FLOW 
charges a standard rate of $0.0030 to remove liquidity.\20\ Pricing is 
subject to change with advance notice provided to subscribers. For non-
subscribers, notice of a price change is published to the FLOW Web site 
in advance of such price change. FLOW charges subscribers and non-
subscribers the same fees for utilizing its system, and monitors the 
average fee charged to non-subscribers and compares it to the average 
fee paid by subscribers in order to ensure the prices are the same.\21\
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    \20\ FLOW also pays a current base rebate is $0.0024 per share 
for added executed visible liquidity and $0.0010 per share of added 
executed non-visible liquidity. There are increased rebate 
incentives for FLOW subscribers that maintain higher volumes on a 
daily basis.
    \21\ FINRA notes that these are the current fees assessed, and 
rebates paid, by FLOW, and that FLOW's fees may be subject to 
change. In that event that FLOW makes a material change to the 
policies and procedures governing access to FLOW, including a change 
to its fees, it will submit to FINRA, and FINRA will post on its Web 
site, an amended description of its policies, procedures and fees 
governing access.
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    All members in good standing of a self-regulatory organization 
(``SRO'') are eligible to become FLOW subscribers, and will be subject 
to credit limits set by FLOW. In setting a subscriber's credit limits, 
FLOW considers the subscriber's financial condition and its regulatory 
history.
    FINRA believes that the policies, procedures and standards 
governing access to protected quotations displayed on the ADF by FLOW 
are reasonably designed to provide market participants with fair and 
efficient access, and are not unfairly discriminatory such that they 
would prevent a market participant from obtaining efficient access to 
such quotations. For example, all members in good standing of an SRO 
are eligible to become FLOW subscribers, and both subscribers and non-
subscribers may access FLOW liquidity. Additionally, both subscribers 
and non-subscribers have multiple options when accessing FLOW 
liquidity: subscribers may use either the FLOW Smart Order Router or 
the FLOW Gateway, and non-subscribers may connect to FLOW through a 
third-party vendor, an exchange, or through a third-party broker-dealer 
that is a subscriber. FLOW allows a subscriber to determine its level 
of connectivity, and FLOW does not have any tiers or rules regarding 
execution of orders based upon Market Participant Identification. No 
participant is given any priority in the FLOW matching engine, and the 
FLOW matching engine is blind to the identity of the participant, with 
the exception of orders using the anti-internalization feature. FLOW 
also has policies and procedures that require FLOW to respond to orders 
by non-subscribers as promptly as it responds to orders by subscribers, 
and allow for non-subscribers to be able to automatically execute 
against quotations displayed by the system.
    FINRA also believes that the proposed level and cost of access is, 
in relative terms, substantially equivalent to the level and cost of 
access provided by SRO trading facilities. FLOW charges a standard rate 
of $0.0030 to remove liquidity; in comparison, BATS assesses a $0.0030 
charge per share for orders in securities priced $1 or above that 
remove liquidity.\22\ Also by way of comparison, Nasdaq assesses a fee 
for removing liquidity for orders in securities that are priced at or 
above $1 that ranges from $0.0029 to $0.0030.\23\ FLOW provides one 
port per subscriber in each of its data centers (primary and secondary) 
for free, and reserves the right to charge a port fee for all 
subsequent connections, which would be assessed $400 per connection, 
per month. This is comparable to port fees assessed by certain 
exchanges. Both FLOW subscribers and non-subscribers are responsible 
for paying for their own external telecommunications costs to connect 
to FLOW, and FLOW believes that these fees are equivalent to the costs 
to connect to any other trading center, such as an exchange.
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    \22\ See BATS BZX Exchange Fee Schedule, available at http://cdn.batstrading.com/resources/regulation/rule_book/BZX_Fee_Schedule.pdf.
    \23\ See Nasdaq fee schedule, available at http://www.nasdaqtrader.com/Trader.aspx?id=PriceListTrading2.
    FINRA also notes that FLOW offers rebates that are substantially 
comparable to rebates offered by SRO trading facilities. FLOW's 
current base rebate is $0.0024 per share for added executed 
displayed liquidity and $0.0010 per share of added executed non-
displayed liquidity. By way of comparison, BATS Exchange, Inc. pays 
a standard rebate of $0.0020 rebate per share for orders in 
securities priced $1 or above that add displayed liquidity, and a 
rebate of $0.0017 for orders in securities priced $1 or above that, 
with certain exceptions, add non-displayed liquidity. See BATS BZX 
Exchange Fee Schedule, available at http://cdn.batstrading.com/resources/regulation/rule_book/BZX_Fee_Schedule.pdf. FLOW offers 
increased rebate incentives for subscribers that maintain higher 
volumes on a daily basis. Similarly, BATS offers a tiered rebate 
structure for displayed liquidity for orders in securities priced $1 
or above for members that meet certain volume thresholds.
    FINRA also notes that Nasdaq offers rebates to firms that add 
displayed liquidity for orders in securities priced at or above $1 
that range, with certain exceptions, from $0.0015 to $0.00305, 
depending in part on whether the firm meets certain volume 
thresholds. Nasdaq offers rebates to firms that add non-displayed 
liquidity for orders in securities priced at or above $1 that range, 
with certain exceptions, from $0.0005 to $0.0017. See Nasdaq fee 
schedule, available at http://www.nasdaqtrader.com/Trader.aspx?id=PriceListTrading2.
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    FLOW also believes that the cost to establish connections to FLOW 
for users of most outbound routers via intranets, cross connects and 
other direct connections, and for individual firms not using these 
services, should be substantially the same as the costs to connect to 
an exchange. FLOW does not charge its subscribers or non-subscribers 
for access to FLOW's market data, in comparison to market data fees 
assessed by exchanges, which range from under $100 per month to costs 
for external distribution, for which some exchanges assess $5,000. FLOW 
does not assess other charges that may be assessed by exchanges, 
including membership fees, trading rights fees, risk gateway fees and 
other miscellaneous fees.
    The proposal shall be effective upon 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,\24\ 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, and Section 15A(b)(9) of the Act,\25\ which requires 
that FINRA rules not impose any burden on competition that is not 
necessary or appropriate.
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    \24\ 15 U.S.C. 78o-3(b)(6).
    \25\ 15 U.S.C. 78o-3(b)(9).
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    FINRA believes this proposal is consistent with the Act because it 
is being submitted pursuant to Rule 610

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and the requirements set forth in the NMS Adopting Release, which 
require FINRA to submit a proposed rule change upon the addition of a 
new ADF participant. This rule change is also consistent with the Act 
in that it sets forth the fees, policies and procedures governing 
access to protected quotations FLOW may display on the ADF, which were 
identified by the Commission as central concerns surrounding the 
adoption of Rule 610.
    As set forth above, FINRA believes that the policies, procedures 
and standards governing access to protected quotations displayed on the 
ADF by FLOW are reasonably designed to provide market participants with 
fair and efficient access, and are not unfairly discriminatory such 
that they would prevent a market participant from obtaining efficient 
access to such quotations. FINRA also believes, as set forth above, 
that the proposed level and cost of access is, in relative terms, 
substantially equivalent to the level and cost of access provided by 
SRO trading facilities.

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

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. FINRA notes that the purpose of 
this filing is to provide for the opportunity for public notice and 
comment on the addition of a new ADF entrant as required by SEC Rule 
610 and the NMS Adopting Release, along with that new entrant's 
proposed fees and policies and procedures for accessing protected 
quotations that it may display on the ADF. As such, FINRA believes that 
this filing may in fact promote competition by providing information 
about the level of access provided, and fees assessed, by a new ADF 
entrant.

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

    Written comments were neither solicited nor received.

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-2013-052 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-2013-052. 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 the 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-2013-052 and should be 
submitted on or before January 7, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-29897 Filed 12-16-13; 8:45 am]
BILLING CODE 8011-01-P