[Federal Register Volume 79, Number 28 (Tuesday, February 11, 2014)]
[Notices]
[Pages 8226-8229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02934]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71486; File No. SR-FINRA-2014-004]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change and 
Amendment No. 1 Thereto Relating to Amendments to FINRA Rule 5110 
(Corporate Financing Rule--Underwriting Terms and Arrangements)

February 5, 2014.
    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 January 24, 2014, 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. On February 
4, 2014, FINRA filed Amendment No. 1 to the proposed rule change.\3\ 
The Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, FINRA: (1) modified Exhibit 5 to correct 
a marking error; and (2) modified Form 19b-4 on page 4 and Exhibit 1 
on page 17 to replace the language ``exchange-traded funds formed as 
grantor or statutory trusts'' with the language ``collective 
investment vehicles that are not registered as investment 
companies.'' This Notice reflects the changes made by Amendment No. 
1.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to amend FINRA Rule 5110 (Corporate Financing 
Rule--Underwriting Terms and Arrangements) to expand the circumstances 
in which termination fees and rights of first refusal are permissible; 
exempt from the filing requirements certain collective investment 
vehicles that are not registered as investment companies; and make 
clarifying, non-substantive changes regarding documents filed through 
FINRA's electronic filing system.\4\
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    \4\ The effective date of the electronic filing requirements 
under Rule 5110 was July 12, 2002. See Notice to Members 02-26.
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    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
    FINRA Rule 5110 (Corporate Financing Rule--Underwriting Terms and 
Arrangements) (the ``Rule''), among other things, regulates 
underwriting compensation, requires the filing of specified information 
in connection with public offerings in which members will participate, 
and prohibits unfair arrangements in connection with public offerings 
of securities. FINRA proposes to amend the Rule's provisions regarding 
unfair arrangements to: (1) Expand the circumstances under which 
members and issuers may negotiate termination fees and rights of first 
refusal (``ROFR''), with specified conditions; (2) exempt from the 
filing requirements exchange-traded funds formed as grantor or 
statutory trusts; and (3) codify the electronic filing requirement.
Termination Fees and Rights of First Refusal
    Rule 5110(f) (Unreasonable Terms and Arrangements) sets forth terms 
and arrangements that, when proposed in connection with a public 
offering of securities, are considered unfair and unreasonable. Rule 
5110(f)(2)(D) addresses fees in connection with a public offering of 
securities that is not completed according to the terms of agreement 
between the issuer and underwriter (``terminated offering''). 
Specifically, paragraph (D) generally provides that it is unfair and 
unreasonable for a member to arrange for the payment of any 
compensation by an issuer in connection with a terminated offering 
(``termination fee'' or ``tail fee''). Paragraph (D) further clarifies 
that this prohibition does not include compensation negotiated and paid 
in connection with a separate transaction that occurs in lieu of the 
proposed offering, or reimbursement of out-of-pocket accountable 
expenses actually incurred by the member.\5\
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    \5\ Rule 5110(f)(2)(C) prohibits payment of commissions or 
reimbursement of expenses to an underwriter prior to the 
commencement of the sale of the securities being offered, except for 
a reasonable advance against out-of-pocket accountable expenses 
actually anticipated to be incurred by the underwriter. To the 
extent such expenses are not actually incurred, any advance received 
must be reimbursed to the issuer.
    Paragraph (D) currently provides that the reimbursement of out-
of-pocket accountable expenses actually incurred by the member will 
not be presumed to be unfair or unreasonable under normal 
circumstances. The proposed amendment modifies paragraph (D) to 
specify that out-of-pocket accountable expenses must be bona fide.
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    Currently, paragraph (f)(2)(E) of Rule 5110 provides that, in the 
event that an issuer terminates an offering with an underwriter and 
subsequently consummates a similar transaction, a termination fee may 
be permissible under certain circumstances. Historically, FINRA has 
only considered permitting termination fee arrangements under this 
provision where the subsequent transaction is an exchange offer or 
similar offering where members provide substantial structuring or 
advisory services (beyond that traditionally provided in connection 
with a distribution of a public offering).\6\ In such cases, FINRA 
believes that a

[[Page 8227]]

termination fee may be appropriate given the extent of the services 
provided by the member to the issuer.
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    \6\ See Notice to Members 97-82 (November 1997). Further, the 
Rule provides that a tail fee may not have a duration of more than 
two years from the date the member's services are terminated; 
however, the Rule provides that a member may demonstrate on the 
basis of information satisfactory to FINRA that an arrangement of 
more than two years is not unfair or unreasonable under the 
circumstances.
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    FINRA has reevaluated its rules around termination fees and 
believes it is appropriate to update the Rule to provide members with a 
greater degree of flexibility and expand the circumstances under which 
participating members and issuers may negotiate termination fee 
arrangements. Specifically, FINRA is proposing to amend Rule 5110(f)(2) 
(Prohibited Arrangements) to generally permit termination fees where: 
(1) the agreement between the participating member and the issuer 
specifies that the issuer has a right of ``termination for cause'' 
(i.e., where a member fails materially to perform the underwriting 
services contemplated in the written agreement); \7\ (2) the agreement 
specifies that an issuer's exercise of its right of ``termination for 
cause'' eliminates any obligations with respect to the payment of any 
termination fee; \8\ (3) the amount of any specified termination fee is 
reasonable in relation to the services contemplated in the written 
agreement; and (4) the agreement specifies that the issuer is not 
responsible for paying the termination fee unless an offering or other 
type of transaction is consummated by the issuer (without involvement 
of the member) within two years of the date the engagement is 
terminated with the member by the issuer. FINRA believes the proposal 
provides members with a greater degree of flexibility in negotiating 
the terms of their agreements for terminated offerings, while also 
providing protection for issuers if a member fails materially to 
perform the underwriting services contemplated in the written 
agreement.
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    \7\ The specific meaning of ``termination for cause'' would be 
dictated by the agreement. For purposes of this proposal, a 
``termination for cause'' would include a member's material failure 
to perform the underwriting services contemplated in the written 
agreement, but is not required to include events that are outside 
the participating member's control.
    \8\ Members would continue to be permitted to receive 
reimbursement of out-of-pocket, bona fide, accountable expenses 
actually incurred by the participating member in connection with a 
terminated offering.
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    Current Rule 5110(f)(2)(F) and (G) address ``ROFRs'', which provide 
a member with the right to underwrite or participate in future public 
offerings, private placements or other financings of the issuer. Rule 
5110(f)(2)(F) deems as unfair and unreasonable any ROFR provided to a 
member that: (1) Has a duration of more than three years from the date 
of effectiveness or commencement of sales of the public offering, or 
(2) provides more than one opportunity to waive or terminate the ROFR 
in consideration of any payment or fee.\9\ Rule 5110(f)(2)(G) prohibits 
any payment or fee to waive or terminate a ROFR regarding future public 
offerings, private placements or other financings that exceed specified 
values or that is not paid in cash.
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    \9\ Historically, FINRA has interpreted the Rule to permit ROFRs 
only in the case of successful offerings.
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    FINRA also has reevaluated its rules around ROFRs and proposes 
amendments to permit ROFRs in the case of both successful as well as 
terminated offerings. FINRA proposes that ROFRs would be permissible 
where: (1) The agreement between the participating member and issuer 
specifies that the issuer has a right of termination for cause (i.e., 
where a member fails materially to perform the underwriting services 
contemplated in the written agreement); (2) an issuer's exercise of its 
right of ``termination for cause'' eliminates any obligations with 
respect to the provision of any ROFR; and (3) any fees arising from 
services provided under a ROFR are customary for those types of 
services. As is currently the case, the Rule would continue to provide 
that the duration of any ROFR may not be for more than three years from 
the date of commencement of sales of the public offering (in the case 
of a successful offering). In the case of a terminated offering, the 
duration may not be for more than three years from the date the 
engagement is terminated by the issuer. In both cases, the agreement 
may not provide for more than one opportunity to waive or terminate the 
ROFR in consideration of any payment or fee.\10\
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    \10\ FINRA is proposing to redesignate Rule 5110(f)(2)(G) as 
Rule 5110(f)(2)(F), which prohibits any payment or fee to waive or 
terminate a ROFR regarding future public offerings, private 
placements or other financings that exceed specified values or that 
is not paid in cash.
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Filing Requirements for Certain Exchange-Traded Funds

    Rule 5110(b)(8) (Exempt Offerings) generally provides an exemption 
for investment companies from the filing requirements of the Rule.\11\ 
Due to this exemption, exchange-traded funds (``ETFs'') that are 
structured as investment companies generally are exempt. However, this 
exemption does not include certain other ETFs that are not investment 
companies. FINRA believes it is appropriate to add an exemption for 
these ETFs even if they do not fall under the definition of an 
``investment company'' for the same reason that investment company ETFs 
are exempted from the Rule. Specifically, the creation structure of 
ETFs, whereby the component securities are deposited in return for 
shares of the fund, is not a distribution model that Rule 5110 was 
designed to address. Thus, FINRA is proposing to exempt offerings of 
securities issued by a pooled investment vehicle, whether formed as a 
trust, partnership, corporation, limited liability company or other 
collective investment vehicle, that is not registered as an investment 
company under the Investment Company Act and has a class of equity 
securities listed for trading on a national securities exchange; 
provided that such equity securities may be created or redeemed on any 
business day at their net asset value per share.
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    \11\ Rule 5110(b)(8)(C) exempts from the Rule's filing 
requirements securities of ``open-end'' investment companies as 
defined in Section 5(a)(1) of the Investment Company Act of 1940 
(``Investment Company Act'') and securities of any ``closed-end'' 
investment company as defined in Section 5(a)(2) of the Investment 
Company Act that: (1) makes periodic repurchase offers pursuant to 
Rule 23c-3(b) under of the Investment Company Act; and (2) offers 
its shares on a continuous basis pursuant to Rule 415(a)(1)(xi) of 
SEC Regulation C.
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Electronic Filing
    Rule 5110(b) (Filing Requirements) generally provides that no 
member or person associated with a member shall participate in any 
manner in a public offering of securities subject to Rules 2310, 5110 
or 5121 unless the specified documents and information relating to the 
offering have been filed with and reviewed by FINRA. FINRA proposes to 
amend the Rule to make clarifying, non-substantive changes regarding 
documents filed through FINRA's electronic filing system.\12\
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    \12\ The effective date of the electronic filing requirements 
under Rule 5110 was July 12, 2002. See Notice to Members 02-26.
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Industry Consultation
    FINRA engaged in an extensive consultative process regarding the 
proposed rule change, including through the issuance of a Regulatory 
Notice soliciting comment on the termination fee and ROFR provisions, 
the exemption for ETFs, and the codification of the electronic filings 
requirement. Commenters generally supported the proposal as set forth 
in the Notice, requesting certain clarifications and modifications. A 
summary of the comments received in response to the Regulatory Notice 
is discussed in Item 5 below.\13\
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    \13\ The Commission notes that Item 5 is part of the rule filing 
itself; it not part of this Notice.
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    FINRA will announce the implementation date of the proposed rule 
change in a Regulatory Notice to be published no later than 60 days

[[Page 8228]]

following Commission approval. The effective date of the proposed rule 
change will be no later than 120 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 \14\ 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.
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    \14\ 15 U.S.C. 78o-3(b)(6).
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    The proposed rule change provides more flexibility to issuers and 
participating members in the negotiation of termination fee and ROFR 
terms and arrangements, while also promoting just and equitable 
principles of trade by providing important protections for issuers who 
terminate agreements with members for cause. Issuers can benefit from 
the advice underwriters provide prior to raising capital, and may be 
able to utilize more of an underwriter's resources if they can wait to 
pay until they have the additional capital they plan to receive in a 
public offering. This may be especially true for foreign issuers that 
may need substantial advice and restructuring before accessing the U.S. 
capital markets. Accordingly, issuers may want to enter into 
termination fee or ROFR agreements if they provide an incentive to 
underwriters to devote additional resources when the risk of not 
receiving remuneration for those services is mitigated.
    In addition, the proposed rule change provides an exemption for 
certain other collective investment vehicles that are not registered as 
investment companies, as exists for open-end and certain closed-end 
investment companies. The proposed rule change also formalizes that 
members must use FINRA's electronic filing system to file required 
information and documents relating to offerings in which they 
participate.

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. As discussed above, the 
proposed rule change sets out consistent rules for all members entering 
into agreements with issuers for the provision of services in 
connection with a public offering of securities, and also enhances 
competition among members that provide underwriting services to issuers 
by broadening the types of compensation arrangements that firms can 
negotiate with issuers. In addition, the amendments require that any 
termination fee paid must be reasonable in relation to the underwriting 
services contemplated and any ROFR fees paid must be customary in 
relation to the services the member provides.
    Further, the proposed rule change provides additional protections 
to issuers that choose to enter into a termination fee agreement or 
provide a right of first refusal by requiring that the agreement 
provide issuers with a right to terminate for cause. Thus, under the 
proposal, issuers would have no obligation to pay a termination fee or 
be bound to a member by a ROFR if that member has failed materially to 
provide the underwriting services contemplated in the agreement.
    The proposed rule change also would promote competition by 
eliminating disparate filing requirements for exchange-traded 
collective investment vehicles not registered as investment companies 
as compared to those that are structured as investment companies. FINRA 
does not believe that the codification of the electronic filing 
requirement or the other non-substantive and clarifying amendments 
contained in the filing will impact competition. Therefore, 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.

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

    On June 6, 2012, FINRA published Regulatory Notice 12-27 
(``Notice'' or ``Notice 12-27'') requesting comment on FINRA's proposal 
to amend Rule 5110. A copy of the Notice is attached as Exhibit 2a.\15\ 
The comment period expired on July 23, 2012. FINRA received three 
comments in response to the Notice.\16\ A list of the commenters in 
response to the Notice is attached as Exhibit 2b, and copies of the 
comment letters received in response to the Notice are attached as 
Exhibit 2c. A summary of the comments and FINRA's response is provided 
below.
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    \15\ The Commission notes that Exhibits 2a, 2b, and 2c, are part 
of the rule filing itself; they are not exhibits to this Notice.
    \16\ See Letter from Bradley J. Swenson, Chief Compliance 
Officer, ALPS Distributors, Inc., to Joseph E. Price, Senior Vice 
President, FINRA, dated July 23, 2012 (``ALPS letter''); letter from 
Sean Davy, Managing Director, Corporate Credit Markets Division, 
Securities Industry and Financial Markets Association, to Marcia E. 
Asquith, Corporate Secretary, FINRA, dated July 23, 2012 (``SIFMA 
letter''); and letter from Jeffrey W. Rubin, Chair, Federal 
Regulation of Securities Committee, Business Law Section of the 
American Bar Association, to Marcia E. Asquith, Corporate Secretary, 
FINRA, dated July 30, 2012 (``ABA letter'').
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    In Notice 12-27, FINRA proposed amendments substantially similar to 
the instant proposal. FINRA proposed to expand the circumstances under 
which termination fees and ROFRs would be permissible while providing 
protections for issuers that terminate arrangements with members for 
cause. The Notice also proposed to eliminate the filing requirements 
for exchange-traded funds that are structured as grantor or statutory 
trusts.
    Commenters generally supported the proposal as set forth in the 
Notice and requested certain clarifications and modifications. With 
respect to the ``termination for cause'' provision, two commenters 
expressed concern that the provision would give an issuer broad 
discretion regarding the circumstances in which it could avoid paying 
an agreed upon termination fee to a member in the event of a terminated 
offering.\17\ One commenter suggested limiting the circumstances under 
which an issuer could exercise its right to terminate for cause to an 
action or event that is ``within the direct control of the member'' and 
results in a material failure on the part of the member to provide the 
underwriting services.\18\ Commenters also suggested that the issuer's 
termination for cause should take into account current market, economic 
and political conditions.\19\ Another commenter suggested that the 
issuer's termination for cause be limited to cases in which the issuer 
requests the member to perform customary and reasonable services in 
connection with the public offering and ``it is determined that the 
member has materially failed to provide such services.'' \20\
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    \17\ See ABA and SIFMA letters.
    \18\ See ABA letter.
    \19\ See ABA and SIFMA letters.
    \20\ See SIFMA letter. SIFMA also suggested that the termination 
for cause provision be operative as a function of the rule itself 
and not be required to be included in the written agreement. FINRA 
disagrees and believes it is important that the termination clause 
be known to issuers and set forth in any written agreement regarding 
the provision of underwriting services by a participating member in 
connection with a public offering of securities.
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    FINRA continues to believe that it is an important issuer 
protection that members' arrangements include an issuer's right to 
terminate an agreement for cause, but has modified the proposal to 
provide that a ``termination for

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cause'' shall include the participating member's material failure to 
provide the underwriting services contemplated in the agreement, since 
agreements may be drafted broadly to include services that are not 
related to the member's role as an underwriter. FINRA also has 
clarified in this filing that an issuer's termination of an agreement 
due to events that are outside the member's control need not constitute 
a ``termination for cause'' under the proposal.
    One commenter suggested amending the ``termination for cause'' 
provision to allow related persons and affiliates of the issuer and 
member to be parties to the written agreement noting that, in certain 
cases, the provisions and associated obligations may be reflected in an 
agreement between these persons.\21\ Rule 5110 defines the terms 
``issuer'' and ``participating member'' broadly to include certain 
related persons and affiliates. FINRA has revised the proposal to 
reflect the term ``participating member'' when referencing the parties 
to a member's written agreement with an issuer.
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    \21\ See SIFMA letter.
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    Notice 12-27 proposed that the agreement between the issuer and 
member provide that any termination fee must be reasonable and any fee 
arising from services provided under a ROFR be customary. Commenters 
argued that requiring the inclusion of the reasonable and customary 
language in a written agreement between the issuer and member is 
unnecessary and suggested that FINRA require these standards in the 
rule, but not require that they be expressed in the written 
agreement.\22\ FINRA agrees and has reflected those changes in the 
instant filing. One commenter also suggested that FINRA clarify whether 
an issuer's payment of termination fees would be considered 
underwriting compensation in connection with a subsequent public 
offering that has been consummated within two years of the termination 
of services.\23\
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    \22\ See ABA and SIFMA letters. SIFMA stated that these 
standards should be ``operative as a function of the rule itself and 
should not be required to be set forth in a written agreement . . . 
.''
    \23\ See SIFMA letter. Under the Rule, items of value, such as 
termination fees or fees paid for services rendered pursuant to a 
ROFR are counted as compensation if they are received within 180 
days prior to filing an offering or during the offering period. See 
Rule 5110(c)(3)(A)(xiii).
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    In Notice 12-27, FINRA proposed an exemption from the filing 
requirements for ETFs formed as a grantor trust or statutory trust in 
which the portfolio assets include commodities, currencies or other 
assets that are not securities. Commenters supported this proposed 
amendment and further suggested that FINRA modify the proposed rule 
language to define the term ``ETF'' and broadly exempt from the Rule 
all ETFs without regard to how they are structured and organized.\24\ 
FINRA has amended the language of the proposal to exempt offerings of 
securities issued by a pooled investment vehicle, whether formed as a 
trust, partnership, corporation, limited liability company or other 
collective investment vehicle, that is not registered as an investment 
company under the Investment Company Act and has a class of equity 
securities listed for trading on a national securities exchange; 
provided that such equity securities may be created or redeemed on any 
business day at their net asset value per share. FINRA believes that 
the current exemption for investment companies would capture virtually 
all other ETFs.
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    \24\ See ABA and ALPS letters.
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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 up to 90 days (i) as the 
Commission may designate 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-2014-004 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-2014-004. 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 20549-1090, 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 principal offices 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-2014-
004, and should be submitted on or before March 4, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-02934 Filed 2-10-14; 8:45 am]
BILLING CODE 8011-01-P