[Federal Register Volume 81, Number 93 (Friday, May 13, 2016)]
[Notices]
[Pages 29929-29932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11295]


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SECURITIES AND EXCHANGE COMMISSION

Release No. 34-77786; File No. SR-FINRA-2016-014]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to 
National Adjudicatory Council Composition, Member Terms and Election 
Procedures

May 9, 2016.
    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 April 28, 2016, 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 amend the By-Laws of FINRA's regulatory 
subsidiary, FINRA Regulation, Inc. (``FINRA Regulation''), to expand 
the size of the National Adjudicatory Council (``NAC'') to 15 members, 
with the number of non-industry members exceeding the number of 
industry members; lengthen the terms of office of future NAC members to 
four years; and update the process used for sending and counting 
ballots in the event of a contested nomination and election to fill 
certain NAC industry member seats.
    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
Background
    In 2007, as part of the consolidation of the member firm regulatory 
functions of National Association of Securities Dealers, Inc. 
(``NASD'') and NYSE Regulation, Inc. into a combined organization, 
FINRA, the SEC approved changes to the NASD By-Laws that, among other 
things, included a governance structure that apportioned public and 
industry representation on the FINRA Board of Governors (``FINRA 
Board'') and designated seven governor seats to represent member firms 
of various sizes based on the criteria of firm size.\3\ As a result of 
these changes, the By-Laws of FINRA (``FINRA By-Laws'') require that 
the FINRA Board consist of no fewer than 16 and no more than 25 
governors.\4\ They provide also that the number of Public Governors 
serving on the FINRA Board shall exceed the number of Industry 
Governors.\5\
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    \3\ See Securities Exchange Act Release No. 56145 (July 26, 
2007), 72 FR 42169 (August 1, 2007), as amended by Securities 
Exchange Act Release No. 56145A (May 30, 2008), 73 FR 32377 (June 6, 
2008) (Order Approving File No. SR-NASD-2007-023).
    \4\ See FINRA By-Laws, Article VII, Section 4 (Composition and 
Qualifications of the Board), paragraph (a).
    \5\ Supra note 4.
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    The FINRA Board consists currently of 24 governors, including 13 
Public Governors, 10 Industry Governors and FINRA's chief executive 
officer.\6\ The ten Industry Governors include a Floor Member Governor, 
an Independent Dealer/Insurance Affiliate Governor, an Investment 
Company Affiliate Governor and seven governors that are subject to 
election to the FINRA Board by member broker-dealers based on the 
criteria of firm size--three Small Firm Governors, one Mid-Size Firm 
Governor and three Large Firm Governors.\7\
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    \6\ Supra note 4. The number of Public Governors is determined 
by the FINRA Board.
    \7\ Supra note 4.
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The National Adjudicatory Council
    The NAC acts on behalf of FINRA in several capacities and its 
powers are authorized by the By-Laws of FINRA

[[Page 29930]]

Regulation (``FINRA Regulation By-Laws'') and FINRA's Code of 
Procedure.\8\ The NAC presides over disciplinary matters appealed to or 
called for review by the NAC.\9\ The NAC also acts, when requested, in 
statutory disqualification and membership proceedings; considers the 
appeals of members seeking exemptive relief; and retains the authority 
to review decisions proposed in other proceedings as set forth in the 
Code of Procedure.\10\ For most matters that the NAC considers, it 
prepares a proposed written decision, which becomes final FINRA action 
if the Board does not call the matter for review.\11\
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    \8\ See FINRA Regulation By-Laws, Article V, Section 5.1 
(Authority); see also FINRA Rule 9000 Series.
    \9\ See generally FINRA Rule 9300 Series. FINRA's disciplinary 
process begins with its Department of Enforcement or Department of 
Market Regulation filing a complaint with the Office of Hearing 
Officers that alleges a member or person associated with a member is 
violating or has violated any rule, regulation, or statutory 
provision, including the federal securities laws and related 
regulations. See FINRA Rule 9212. When requested, trial-level 
hearings take place before a Hearing Panel or an Extended Hearing 
Panel, which listens to the presentation of evidence and issues a 
written decision setting forth findings as to whether a respondent 
engaged in the alleged misconduct and describing the sanctions, if 
any, imposed. See FINRA Rule 9221; see generally FINRA Rule 9260 
Series. A respondent or the Department of Enforcement or Market 
Regulation may appeal a disciplinary decision to the NAC. See FINRA 
Rule 9311. In the absence of an appeal, a decision may be subject to 
NAC review if called for review by any member of the NAC, any member 
of the NAC's Review Subcommittee, or in the event of a default, the 
General Counsel. See FINRA Rule 9312.
    \10\ See FINRA Rule 9524; NASD Rule 1015; FINRA Rule 9630; FINRA 
Rule 9559; FINRA Rule 9760.
    \11\ See FINRA Rule 9349.
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    The FINRA Regulation By-Laws establish the composition of the NAC, 
the terms of its members, and the process by which members are 
selected. The NAC is composed currently of 14 members.\12\ The number 
of Non-Industry Members, which must include at least three Public 
Members, equals the number of Industry Members.\13\ The seven Industry 
Members include two Small Firm NAC Members, one Mid-Size Firm NAC 
Member, two Large Firm NAC Members and two at-large Industry 
Members.\14\
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    \12\ See FINRA Regulation By-Laws, Article V, Section 5.2 
(Number of Members and Qualifications), paragraph (a).
    \13\ Supra note 12. A ``Non-Industry Member'' of the NAC 
includes any Public Member, an officer or employee of an issuer of 
securities listed on a market for which FINRA provides regulation, 
an officer or employee of an issuer of unlisted securities that are 
traded in the over-the-counter market, or any individual who would 
not otherwise fall within the definition of an Industry Member. See 
FINRA Regulation By-Laws, Article I, paragraph (ee). A ``Public 
Member'' is a Non-Industry Member who has no material business 
relationship with a broker or dealer or a self-regulatory 
organization registered under the Act. See FINRA Regulation By-Laws, 
Article I, paragraph (hh). An ``Industry Member'' includes a person 
who is or served in the prior year as an officer, director, employee 
or controlling person of a broker-dealer; is an officer, director or 
employee of an entity that owns a material equity interest in a 
broker-dealer; owns personally a material equity interest in a 
broker-dealer; provides professional services to broker-dealers, or 
to a director, officer, or employee of a broker-dealer in their 
professional capacity, where the revenues from such services meet 
material thresholds; or is or served in the prior year as a 
consultant, employee or provider of professional services to a self-
regulatory organization registered under the Act. See FINRA 
Regulation By-Laws, Article I, paragraph (x).
    \14\ Supra note 12.
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    The FINRA Board appoints the NAC and its members.\15\ The FINRA 
Board appoints Non-Industry Members and at-large Industry Members from 
candidates recommended by the Nominating Committee. The FINRA Board 
also appoints Small Firm, Mid-Size Firm and Large Firm NAC Members, 
either from candidates recommended by the Nominating Committee, or in 
the event of a contested election for a Small Firm, Mid-Size Firm or 
Large Firm NAC Member vacancy, the candidate that results from an 
election in which FINRA members have an opportunity to vote directly 
for a candidate based on firm size.\16\ The Small Firm, Mid-Size Firm 
or Large Firm NAC Member candidate receiving the largest number of 
votes from firms of corresponding size is declared the nominee, and the 
Nominating Committee sends a written certification of the results to 
the FINRA Board and nominates such candidate for appointment to the 
NAC.\17\
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    \15\ See FINRA Regulation By-Laws, Article V, Section 5.3 
(Appointments).
    \16\ Supra note 15. A person who has not been nominated by the 
Nominating Committee may be included on a ballot for election to 
fill an open Small Firm, Mid-Size Firm or Large Firm NAC Member seat 
by contesting the Nominating Committee's nominee after successfully 
petitioning for inclusion on the ballot. See FINRA Regulation By-
Laws, Article VI, Section 6.2 (Designation of Additional 
Candidates).
    \17\ See FINRA Regulation By-Laws, Article VI, Section 6.13 
(Certification of Nomination). The FINRA Board is required to 
appoint to the NAC the candidate who receives the most votes in any 
contested election for a Small Firm, Mid-Size Firm or Large Firm NAC 
Member seat. See FINRA Regulation By-Laws Article V, Section 5.5 
(Rejection of Nominating Committee Nominee).
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Discussion of the Proposed Rule Change
    The proposed rule change would amend the FINRA Regulation By-Laws 
in three principal ways. First, the proposed rule change would make a 
limited modification to the NAC's composition and align it more closely 
with that of the FINRA Board. Second, the proposed rule change would 
lengthen the terms of future NAC members to encourage consistency and 
continuity in NAC decision making. Finally, the proposed rule change 
would modernize the selection process used in the event of a contested 
nomination and election for certain industry member NAC seats by 
permitting new balloting methods and streamlining the process by which 
ballots are counted.
Proposal To Change the Composition of the NAC
    The proposed rule change would amend Section 5.2 of the FINRA 
Regulation By-Laws to expand the size of the NAC to 15 members and 
apply the requirement that the NAC have more Non-Industry Members, 
including three Public Members, than Industry Members, thus following 
closely the requirement that exists in the FINRA By-Laws that the 
number of Public Governors on the FINRA Board exceed the number of 
Industry Governors.\18\ FINRA proposed, and the SEC approved, the 
current FINRA Board governance structure to strike an appropriate 
balance between the necessity for overall independence of the FINRA 
Board and the desire for substantial, meaningful and diverse industry 
representation in FINRA's governing process.\19\ The condition that the 
number of Public Governors exceed the number of Industry Governors 
permits the FINRA Board to consider the needs of the entire securities 
industry, including issuers, large and small investors and securities 
firms and their professionals, while at the same time broadly assuring 
the independence of FINRA's regulatory function.\20\
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    \18\ Although the terms ``Non-Industry Member'' and ``Public 
Governor'' are not by their definitions exact analogs, both terms 
are comparable in excluding from their definitions any person who 
has a material business relationship or interests that align closely 
with a FINRA member broker-dealer or a self-regulatory organization 
registered under the Act. Compare FINRA Regulation By-Laws, Article 
I, paragraph (ee), with FINRA By-Laws, Article I, paragraph (tt).
    \19\ See supra note 3.
    \20\ See supra note 3.
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    Under the proposed rule change, the NAC would consist of 15 
members, including eight Non-Industry Members and seven Industry 
Members. FINRA would thus achieve the objective of a majority non-
industry NAC by adding one Non-Industry Member seat to the current 14-
member committee. Requiring that the number of Non-Industry Members 
exceed the number of Industry Members will enhance overall the 
independence of the NAC and reinforce the integrity of the NAC as an 
impartial and fair adjudicatory body.

[[Page 29931]]

Proposal To Change NAC Member Terms
    The proposed rule change would also lengthen the terms of office of 
future NAC members. NAC members are divided currently into three 
classes, with members serving three-year terms of office that commence 
and expire on a staggered, annual basis.\21\ Consequently, 
approximately one-third of the NAC members complete their service in a 
particular year and are replaced with newly appointed members. This 
represents a significant amount of turnover annually and risks 
undermining the cohesion and continuity of the NAC as an adjudicatory 
body.
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    \21\ See FINRA Regulation By-Laws, Article V, Section 5.6 (Term 
of Office), paragraphs (a) and (b).
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    The proposed rule change would amend Section 5.6 of the FINRA 
Regulation By-Laws to extend by one year, to four total years, the 
terms of new NAC members.\22\ This would result in a NAC that is 
divided into four classes, rather than the current three, that are as 
equal in number as feasible.\23\ Extending to four years the term of 
each NAC member will allow for greater utilization of the unique skills 
and expertise of each member, diminish the risk associated with 
recurrent losses of institutional knowledge and provide FINRA more 
opportunity to recoup over a longer period of time its investment in 
training NAC members to fulfill their roles as adjudicators.\24\
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    \22\ The proposed rule change would not alter or extend the term 
of any NAC member serving currently but would affect instead the 
term of any NAC member appointed to serve by the FINRA Board after 
the effective date of the rule change.
    \23\ The proposed rule change would amend Section 5.6(a) of the 
FINRA Regulation By-Laws to provide a three-year transitional period 
during which the FINRA Board may appoint new NAC members to terms of 
office less than four years to achieve the staggering necessary to 
divide the NAC into four classes. FINRA anticipates that, beginning 
in January 2017, and ending in December 2019, new NAC members shall 
be appointed to terms of either three years or four years to achieve 
the result of a NAC that is divided into four classes, with each NAC 
member serving a term of four years. The proposed rule change would 
also make a conforming amendment to Section 5.6(b) of the FINRA 
Regulation By-Laws to delete obsolete text related to a prior rule 
change that replaced region-based Industry NAC members with Industry 
members that represent FINRA member firms of various sizes. See 
Securities Exchange Act Release No. 58909 (November 6, 2008), 73 FR 
68467 (November 18, 2008) (Order Approving File No. SR-FINRA-2008-
046).
    \24\ A NAC member, absent a limited exception, may not serve 
consecutive terms. See FINRA Regulation By-Laws, Article V, Section 
5.6 (Term of Office), paragraph (c). The proposed rule change would 
make a conforming amendment to this By-Law provision.
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Proposal To Change the NAC Selection Process
    Finally, the proposed rule change would make limited, procedural 
and administrative modifications to the NAC selection process. The 
proposed changes would make the NAC election process streamlined, 
accessible and align it with the process used currently for elections 
involving the FINRA District Committees.
    The FINRA Regulation By-Laws, as currently written, require that 
the Nominating Committee prepare and deliver by mail, in the event of a 
contested election for a Small Firm, Mid-Size Firm or Large Firm NAC 
Member seat, a ballot with the names of the candidates standing for 
election, and a FINRA member eligible to vote based on their firm size 
must return the ballot envelope by mail with a postmark bearing a date 
on or before the return date specified on the ballot.\25\ The proposed 
rule change would amend Section 6.7 of the FINRA Regulation By-Laws to 
delete language that suggests that voting by paper ballot is the sole 
method of voting in contested NAC elections and recognize the delivery 
of ballots by other efficient, contemporary means.\26\ The proposed 
rule change would align the ballot preparation process in NAC elections 
with that permitted currently in FINRA District Committee elections and 
allow FINRA members to vote using online and telephonic methods in 
addition to paper ballots.\27\
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    \25\ See FINRA Regulation By-Laws, Article VI, Section 6.7 
(Ballots).
    \26\ The proposed rule change would also make a conforming 
amendment to Section 6.9 of the FINRA Regulation By-Laws concerning 
ballots that are returned as undelivered.
    \27\ See FINRA Regulation By-Laws, Article VIII, Section 8.11 
(Ballots).
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    The proposed rule change would also amend Section 6.10 of the FINRA 
Regulation By-Laws to simplify the tabulation of ballots by the 
Independent Agent. The proposed rule change would eliminate the 
provision in Section 6.10 of the FINRA Regulation By-Laws that permits 
NAC candidates and their representatives to observe the Independent 
Agent's accounting of ballots in contested NAC elections. The proposed 
rule change would align the ballot counting process used in NAC 
elections with the process used in FINRA District Committee elections, 
which does not provide candidates the ability to be present while the 
Independent Agent opens and counts the ballots.\28\ The proposed rule 
change will allow the Independent Agent to expedite the accounting 
process and permit the Secretary of FINRA to notify the candidates more 
quickly of NAC election results.
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    \28\ See FINRA Regulation By-Laws, Article VIII, Section 8.14 
(General Procedures for Qualification and Accounting of Ballots). 
The opportunity to observe the Independent Agent's qualification and 
accounting of ballots is one which NAC candidates have infrequently 
availed themselves and provides candidates no additional grounds for 
recourse. Candidates and their representatives are not allowed to 
see the vote of any FINRA member and the final determination of the 
qualification of a ballot rests with the Secretary of the 
Corporation. See FINRA Regulations By-Laws, Article VI, Section 6.10 
(General Procedures for Qualification and Accounting of Ballots). 
The proposed rule change does not alter the requirement that the 
Secretary of the Corporation certify election results. See FINRA 
Regulation By-Laws, Article VI, Section 6.13 (Certification of 
Nomination).
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    If the Commission approves the proposed rule change, FINRA will 
announce the effective date of the proposed rule change in a Regulatory 
Notice to be published no later than 60 days following Commission 
approval. The effective date will be no later than 30 days following 
publication of the Regulatory Notice announcing Commission approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(8) of the Act,\29\ which requires, among 
other things, that FINRA rules provide a fair procedure for the 
disciplining of members and persons associated with members. FINRA 
believes that the proposed rule change, consistent with this purpose of 
the Act, assures that disciplinary appeals and other matters considered 
by the NAC will continue to be heard and resolved by a NAC that is 
composed of members with a diversity of expertise, experiences and 
perspectives that fosters making fair decisions and, where necessary, 
imposing appropriately remedial sanctions.
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    \29\ 15 U.S.C. 78o-3(b)(8).
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    FINRA believes further that the proposed rule change is consistent 
with the provisions of Section 15A(b)(6) of the Act,\30\ 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 believes that making a limited 
modification to the NAC's composition to align it more closely with 
that of the FINRA Board will enhance overall the independence of the 
NAC as an adjudicatory body. Ensuring that the NAC has a majority of 
Non-Industry Members emphasizes the importance of the unique, balanced 
perspectives that

[[Page 29932]]

are valued in NAC deliberations and aid in its ability to address 
issues in a neutral fashion. FINRA believes that adding one Non-
Industry Member seat to the NAC confirms that a diversity of views is 
represented in the NAC's opinions.
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    \30\ 15 U.S.C. 78o-3(b)(6).
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    FINRA believes also that the proposed rule change is consistent 
with the provisions of Section 15A(b)(4) of the Act,\31\ which 
requires, among other things, that FINRA rules assure a fair 
representation of its members in the administration of its affairs. 
Although the proposed rule change would make a limited change to the 
NAC's composition, it would nevertheless continue FINRA's custom of 
substantial industry participation in FINRA's adjudicatory process and 
would not dilute the critically important involvement of FINRA members 
and their associated persons in NAC deliberations. Under the proposed 
rule change, the opportunity for FINRA members to vote on five 
designated Industry Member NAC seats based on firm size--two Small 
Firm, one Mid-Size Firm and two Large Firm Member seats--is unaltered. 
The right of FINRA members to elect a total of five Industry Members to 
the NAC, one-third of all members, based on firm size is consistent 
with the Act's fair representation requirement.\32\ The proposed rule 
change will also result in a more accessible NAC election process, 
which FINRA believes will assure a fair representation of its members 
on the NAC.\33\
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    \31\ 15 U.S.C. 78o-3(b)(4).
    \32\ The Commission has found the similar composition 
requirements of the FINRA Board to meet the statutory requirements 
of Section 15A(b)(4) of the Act. See supra note 3.
    \33\ The Commission has found that the processes used currently 
for FINRA District Elections, processes with which those used in NAC 
elections would be aligned under the proposed rule change, are 
consistent with the statutory requirements of the Act. See 
Securities Exchange Act Release No. 64363 (April 28, 2011), 76 FR 
25397 (May 4, 2011) (Order Approving File No. SR-FINRA-2011-011).
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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. The proposed rule change is 
intended solely to enhance impartiality and integrity in FINRA's 
process for reviewing appeals of disciplinary and other decisions 
concerning member firms and their associated persons, and will lead to 
efficiencies in the process by which some NAC members are elected to 
the NAC by allowing contemporary balloting methods and expediting the 
process by which ballots are counted. FINRA does not believe that there 
are any material economic impacts associated with the proposed rule 
change.

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-2016-014 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-FINRA-2016-014. 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 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-2016-014, and should 
be submitted on or before June 3, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-11295 Filed 5-12-16; 8:45 am]
BILLING CODE 8011-01-P