[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Notices]
[Pages 43833-43836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18076]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-86700; File No. SR-FINRA-2019-017]
Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Approving a Proposed Rule Change To Amend FINRA
Rules 2210 (Communications With the Public) and 2241 (Research Analysts
and Research Reports)
August 16, 2019.
I. Introduction
On June 20, 2019, 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'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend FINRA Rules 2210 (Communications with the
Public) and 2241 (Research Analysts and Research Reports) to conform to
the requirements of the Fair Access to Investment Research Act of 2017
(``FAIR Act'').\3\ The proposed rule change would eliminate the ``quiet
period'' restrictions in FINRA Rule 2241 on publishing a research
report or making a public appearance concerning a covered investment
fund and would create a filing exclusion under FINRA Rule 2210 for
covered investment fund research reports.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Fair Access to Investment Research Act of 2017, Public
Law 115-66, 131 Stat. 1196 (2017).
---------------------------------------------------------------------------
The proposed rule change was published for comment in the Federal
Register on July 8, 2019.\4\ The public comment period closed on July
29, 2019. The Commission received one comment letter in response to the
Notice, supporting the proposed rule change.\5\ This order approves the
proposed rule change.
---------------------------------------------------------------------------
\4\ See Exchange Act Release No. 86257 (Jul. 1, 2018), 84 FR
32492 (Jul. 8, 2019) (File No. SR-FINRA-2019-017 (``Notice'').
\5\ See Letter from the Dorothy Donohue, Deputy General Counsel,
Investment Company Institute (``ICI''), dated July 29, 2019 (``ICI
Letter''), available at https://www.sec.gov.
---------------------------------------------------------------------------
II. Description of the Proposed Rule Change 6
---------------------------------------------------------------------------
\6\ The subsequent description of the proposed rule change is
substantially excerpted from FINRA's description in the Notice. See
Notice, 84 FR at 32492-32497.
---------------------------------------------------------------------------
The FAIR Act requires the SEC to propose and adopt rule amendments
that would extend the current safe harbor under Securities Act of 1933
(``Securities Act'') Rule 139 \7\ to a ``covered investment fund
research report'' upon terms and conditions that the SEC determines are
necessary or appropriate in the public interest, for the protection of
investors, and for the promotion of capital formation.\8\ The FAIR Act
directs that in implementing the safe harbor for covered investment
fund research reports, the SEC is required to: (1) Meet specified
requirements concerning the safe harbor's conditions, (2) prohibit any
self-regulatory organization (``SRO'') from maintaining or enforcing
specified rules regarding such reports, and (3) provide that a covered
investment fund research report is not subject to the sales material
filing requirements in section 24(b) of the Investment Company Act of
1940 (``Investment Company Act'').\9\
---------------------------------------------------------------------------
\7\ 17 CFR 230.139.
\8\ See Section 2(a) of the FAIR Act.
\9\ See Section 2(b) of the FAIR Act.
---------------------------------------------------------------------------
On November 30, 2018, the SEC adopted its final rules and rule
amendments to implement the FAIR Act.\10\ New Rule 139b expanded the
Rule 139 safe harbor to include covered investment fund research
reports, subject to specified conditions. Specifically, Rule 139b
established a safe harbor for an unaffiliated broker or dealer
participating in a securities offering of a covered investment fund to
publish or distribute a covered investment fund research report. If the
conditions in Rule 139b are satisfied, the publication or distribution
of a covered investment fund research report would be deemed not to be
an offer for sale or offer to sell the covered investment fund's
securities for purposes of sections 2(a)(10) and 5(c) of the Securities
Act. Rule 139b also adopted the FAIR Act's definitions of ``covered
investment fund,'' ``covered investment fund research report,'' and
``research report,'' subject to minor non-substantive revisions.\11\
---------------------------------------------------------------------------
\10\ See Securities Act Release No. 10580 (Nov. 30, 2018), 83 FR
64180 (Dec. 13, 2018) (the ``Release'').
\11\ See 17 CFR 230.139b(c).
---------------------------------------------------------------------------
The SEC also adopted new Rule 24b-4 under the Investment Company
Act, which specifies that a covered investment fund research report as
defined in Rule 139b that concerns a fund registered under the
Investment Company Act shall not be subject to section 24(b) of the
Investment Company Act or any rules or regulations thereunder, unless
the report is not subject to SRO rules relating to research reports,
including rules governing communications with the public.\12\ Section
24(b) of the Investment Company Act generally requires certain
registered investment companies and their underwriters to file sales
material concerning those funds with the SEC within 10 days of use.\13\
---------------------------------------------------------------------------
\12\ See 17 CFR 270.24b-4.
\13\ See 15 U.S.C. 80a-24(b). This filing requirement applies to
sales material concerning any registered open-end management
investment company, any registered unit investment trust (``UIT''),
or any registered face-amount certificate company (``FACC'').
---------------------------------------------------------------------------
Changes to FINRA Rules Required by the FAIR Act
As discussed in the Notice, FINRA has interpreted the FAIR Act as
requiring it to make two changes to FINRA Rules. Therefore, FINRA has
proposed: (1) To amend Rule 2241 to eliminate the quiet period
restrictions on publishing a research report or making a public
appearance concerning a covered investment fund that is the subject of
such a report; and (2) to amend Rule 2210 to create a filing exclusion
for covered investment fund research reports that qualify for the
Securities Act Rule 139b safe harbor.
FINRA Equity Research Rules
FINRA Rule 2241 governs the publication of research reports
concerning equity securities and the analysts that produce such
research. Rule 2241 requires members to establish, maintain and enforce
written policies and procedures reasonably designed to identify and
effectively manage conflicts of interest related to the preparation,
content and distribution of research reports and public appearances by
research
[[Page 43834]]
analysts.\14\ Among other things, these policies and procedures also
must define periods during which the member must not publish or
otherwise distribute research reports, and research analysts must not
make public appearances, related to the issuer (``quiet periods''). As
discussed in the Notice, these quiet periods restrict a member that has
participated as an underwriter or dealer in an initial public offering
(``IPO''), as well as managers and co-managers of secondary offerings,
from publishing research or having its research analysts make public
appearances.\15\
---------------------------------------------------------------------------
\14\ See FINRA Rule 2241(b)(1).
\15\ See Notice, 84 FR at 32493. See also, FINRA Rule
2241(b)(2)(I). This provision contains specified exceptions to the
quiet periods for research reports and public appearances following
an offering of securities of an Emerging Growth Company, for reports
or appearances that discuss significant news or events concerning a
subject company, and for reports and appearances regarding subject
companies with ``actively traded securities'' as defined in SEC
Regulation M.
---------------------------------------------------------------------------
While Rule 2241 excludes from its definition of ``research report''
communications related to mutual funds, the Rule does apply to
communications that meet the definition of ``research report'' under
Rule 2241 concerning other covered investment funds, including closed-
end funds (``CEFs''), exchange-traded funds (``ETFs''), BDCs, UITs, and
commodity or currency funds.\16\ Therefore, research reports (as
defined under Rule 2241) on covered investment funds (other than mutual
funds) are subject to Rule 2241's quiet periods if such research
reports are published by an underwriter or dealer in the IPO or manager
or co-manager of a secondary offering.
---------------------------------------------------------------------------
\16\ See FINRA Rule 2241(a)(11).
---------------------------------------------------------------------------
As discussed above, Section 2(b) of the FAIR Act requires the SEC
to prohibit any SRO from maintaining or enforcing any rule that would
prohibit the ability of a member to:
Publish or distribute a covered investment fund research
report solely because the member is also participating in a registered
offering or other distribution of the fund; or
Participate in a registered offering or other distribution
of securities of a covered investment fund solely because the member
has published or distributed a covered investment fund research report
about the fund or its securities.\17\
---------------------------------------------------------------------------
\17\ See Section 2(b)(3) of the FAIR Act.
---------------------------------------------------------------------------
Therefore, FINRA's proposal to amend Rule 2241 excepts from the
Rule's quiet period requirements the publication or distribution of
research reports and research analysts' public appearances if the
member has participated in the offering of the subject company's
securities.\18\ Under this new proposed exception, the quiet period
requirements shall not apply to a research report or a public
appearance following any offering of the securities of a covered
investment fund that is the subject of a covered investment fund
research report.\19\ Although the FAIR Act does not address quiet
periods for public appearances by research analysts, FINRA also
proposes to eliminate such quiet periods for public appearances
concerning a covered investment fund. Under Rule 2241, quiet periods
for both research reports and public appearances are the same, and
FINRA believes elimination of both quiet periods would advance the
policy objectives of the FAIR Act.\20\
---------------------------------------------------------------------------
\18\ As discussed above, because the definition of ``research
report'' under Rule 2241 is narrower than the definition of
``research report'' under the FAIR Act, not all covered investment
fund research reports are subject to Rule 2241. Nevertheless, to the
extent that a covered investment fund research report is also a
research report subject to Rule 2241, the publication and
distribution of such reports will not be subject to the rule's quiet
periods.
\19\ FINRA also proposes to define the terms ``covered
investment fund'' and ``covered investment fund research report'' as
having the same meanings as in Securities Act Rule 139b. See
Proposed FINRA Rules 2241(a)(15) and (16).
\20\ FINRA rules do not prohibit a member from participating in
a registered offering or other distribution of securities of a
covered investment fund solely because the member has published
research about the fund. Accordingly, there is no need to amend any
FINRA rule to meet this requirement of section 2(b)(3) of the FAIR
Act or Securities Act Rule 139b(b).
---------------------------------------------------------------------------
Elimination of Filing Requirement
As discussed above, section 24(b) of the Investment Company Act
requires registered open-end management investment companies,
registered UITs, registered FACCs, and their underwriters to file sales
material for the funds with the SEC within 10 days of first use.
Investment Company Act Rule 24b-3 provides that any sales material
shall be deemed filed with the SEC for purposes of section 24(b) upon
filing with a registered national securities association that has
adopted rules providing standards for the investment company
advertising practices of its members and has established and
implemented procedures to review that advertising.\21\
---------------------------------------------------------------------------
\21\ FINRA is currently the only national securities association
registered under the Exchange Act that has adopted such rules and
procedures.
---------------------------------------------------------------------------
Accordingly, virtually all principal underwriters of mutual funds,
ETFs, UITs and FACCs satisfy the section 24(b) requirement by filing
their sales material with FINRA. Rule 2210 requires members to file
within 10 business days of first use or publication retail
communications that promote or recommend a specific registered
investment company or family of registered investment companies
(including mutual funds, ETFs, variable insurance products, CEFs and
UITs), as well as retail communications that concern any other
registered security that is derived from or based on a single security,
a basket of securities, an index, a commodity, a debt issuance or a
foreign currency.\22\
---------------------------------------------------------------------------
\22\ See FINRA Rules 2210(c)(3)(A) and (D). For a one-year
period beginning on the date reflected in FINRA's Central
Registration Depository (CRD) system as the date that FINRA
membership became effective, a member also must file with FINRA at
least 10 business days prior to first use any broadly disseminated
retail communication, regardless of whether it concerns a registered
investment company. See FINRA Rule 2210(c)(1)(A). In addition, a
member must file at least 10 business days prior to first use any
retail communication concerning registered investment companies that
includes performance rankings or comparisons that are not generally
published, or that were created by the investment company, its
underwriter, or an affiliate. See FINRA Rule 2210(c)(2)(A).
---------------------------------------------------------------------------
As discussed in the Notice, pursuant to section 2(b)(4) of the FAIR
Act, the SEC has adopted Investment Company Act Rule 24b-4, which
provides that a covered investment fund research report, as defined in
Securities Act Rule 139b(c)(3), of a covered investment fund registered
as an investment company under the Investment Company Act, shall not be
subject to section 24(b) of the Act or any rules or regulations
thereunder. However, a covered investment fund research report is still
subject to the section 24(b) filing requirement if the report is not
subject to the content standards of any SRO rules related to research
reports, including those contained in the SRO's rules governing
communications with the public regarding investment companies or
substantially similar standards.\23\
---------------------------------------------------------------------------
\23\ See 17 CFR 270.24b-4.
---------------------------------------------------------------------------
As discussed above, section 2(c)(2) of the FAIR Act provides that
nothing in the Investment Company Act shall be construed as in any way
limiting the authority of any SRO to examine or supervise a member's
practices in connection with the member's publication or distribution
of a covered investment fund research report for compliance with
applicable provisions of the Federal securities laws or SRO rules
related to research reports, including those contained in rules
governing communications with the public, or to ``require the filing of
communications with the public the purpose of which is not to provide
research and analysis of covered investment funds.'' \24\ Accordingly,
[[Page 43835]]
FINRA interpreted the FAIR Act as requiring FINRA to create a filing
exclusion in Rule 2210 for covered investment fund research reports,
but permits FINRA to require the filing of a covered investment fund
research report if the purpose of the report is not to provide research
and analysis of covered investment funds.\25\
---------------------------------------------------------------------------
\24\ See section 2(c)(2) of the FAIR Act.
\25\ See Notice, 83 FR at 32494.
---------------------------------------------------------------------------
Further, FINRA stated it intended to create a rule that furthers
the purposes of the FAIR Act, protects investors, and is relatively
straightforward for broker-dealers to implement. FINRA believes that
these objectives could best be achieved if the filing exclusion applies
to any ``covered investment fund research report'' as defined by Rule
139b that qualifies for the Rule 139b safe harbor.\26\ Moreover, FINRA
believes that the SEC, through rulemaking, had determined which
research reports should be subject to the Rule 139b safe harbor, and
there is no policy reason to create a filing exclusion for covered
investment fund research reports that differed from this standard.
---------------------------------------------------------------------------
\26\ In the Notice, FINRA summarized comments that the
Commission had discussed in the Release that recommended that FINRA
modify its rules. FINRA also explained that it did not modify the
definition of ``research report'' under FINRA Rule 2241 to match the
definition of ``research report'' under the FAIR Act and Rule 139b
because FINRA believes that it would be inconsistent with the
requirements of Section 15D of the Exchange Act to do so. See
Notice, 83 FR at 32494-32495.
---------------------------------------------------------------------------
As stated above, the FAIR Act authorizes FINRA to require members
to file any covered investment fund research report the purpose of
which is not to provide research and analysis of covered investment
funds. As described more fully in the Notice, FINRA considered how and
whether to treat such reports.\27\ FINRA believes that the intent of
the FAIR Act and Rule 139b is to increase the volume and publication of
research reports on covered investment funds subject to appropriate
conditions, and thus believes that its proposed filing exclusion should
be consistent with this approach. Moreover, FINRA believes that Rule
139b's requirements reflect the Commission's careful consideration of
balancing the need for more fund research with investor protection.\28\
For these reasons, FINRA has proposed to exclude from filing all
covered investment fund research reports that qualify for the Rule 139b
safe harbor.\29\
---------------------------------------------------------------------------
\27\ See, Notice, 83 FR 32495.
\28\ See generally Release, supra note 10, at 64183-64193.
\29\ Of course, FINRA may still review such reports through
examinations, targeted sweeps, or spot checks, and such reports will
remain subject to the content standards of FINRA rules governing
communications with the public. See Section 2(c)(2) of the FAIR Act;
see also Release, supra note 10, at 64194 and fn. 185.
---------------------------------------------------------------------------
Therefore, FINRA has proposed to create a new filing exclusion
under Rule 2210 for ``any covered investment fund research report that
is deemed for purposes of sections 2(a)(10) and 5(c) of the Securities
Act not to constitute an offer for sale or offer to sell a security
under Securities Act Rule 139b.'' \30\ FINRA also proposed to define
``covered investment fund research report'' as having the same meaning
given that term in paragraph (c)(3) of Securities Act 139b.\31\
---------------------------------------------------------------------------
\30\ See Notice, proposed FINRA Rule 2210(c)(7)(P).
\31\ See Notice, proposed FINRA Rule 2210(a)(7).
---------------------------------------------------------------------------
Affiliated Research Reports
The FAIR Act and Securities Act Rule 139b define ``covered
investment fund research report'' to exclude a research report to the
extent that the report is published or distributed by the covered
investment fund, any affiliate of the covered investment fund, or any
broker or dealer that is an investment adviser (or an affiliated person
of an investment adviser) for the covered investment fund.\32\ Thus,
research reports published or distributed by a covered investment fund,
its affiliate, or any broker-dealer that is an investment adviser (or
an affiliate of the investment adviser) for the covered investment fund
will still have to be filed under Investment Company Act section 24(b)
and FINRA Rule 2210.\33\
---------------------------------------------------------------------------
\32\ See Section 2(f)(3) of the FAIR Act and Securities Act Rule
139b(c)(3).
\33\ If a research report concerns both a covered investment
fund that is an affiliate of the member that is publishing or
distributing the research report, as well as a third-party fund that
is not affiliated with the member publishing or distributing the
report, the research report would not qualify as a covered
investment fund research report. See Release, supra note 7, at 64191
(stating that ``[w]e believe extending the rule 139b safe harbor to
affiliated funds in industry research reports (whether industry
representation or comprehensive list reports) would not be
consistent with the intent and plain language of section 2(f)(3) of
the FAIR Act'').
---------------------------------------------------------------------------
In some cases, an investment adviser or another affiliate of a
registered investment company will enter into an agreement with an
unaffiliated broker-dealer to act as the principal underwriter for the
fund (``third-party distributor''). As described in the Notice, third-
party distributors provide a variety of services pursuant to their
distribution agreements with investment companies. Typically, these
funds' investment advisers or the funds themselves prepare the retail
communications, and then submit the communications to the third-party
distributor for compliance review and filing with FINRA and may be
posted on the investment adviser's or the fund's or an affiliate's
websites or through other media. As the SEC noted in the Release, one
factor to consider in evaluating whether a research report has been
published or distributed by a person covered by the affiliate exclusion
from the definition of covered investment fund research report is the
extent of such person's involvement in the preparation of the research
report.\34\ The Commission refers to such affiliate involvement or
endorsement as ``the entanglement or adoption theory, respectively.''
\35\
---------------------------------------------------------------------------
\34\ See Release, supra note 10, at 64182.
\35\ See supra note 34.
---------------------------------------------------------------------------
Thus, FINRA stated that it will not consider research reports on
covered investment funds to be excluded from filing under the proposed
changes to Rule 2210 if personnel of the covered investment fund, any
affiliate of the fund, or any broker-dealer that is the investment
adviser or an affiliated person of the investment adviser were
entangled with the preparation of the report, or had adopted its
contents after it had been prepared.\36\
---------------------------------------------------------------------------
\36\ See Release, supra note 10, at 64181-64183 (discussion of
affiliate exclusion). For example, if a third-party distributor
publishes or distributes research concerning a fund that was written
by personnel of the fund's investment adviser, the report still
would be subject to filing under Rule 2210.
---------------------------------------------------------------------------
III. Comment Summary
As noted above, the Commission received one comment letter on the
proposed rule change, supporting the proposal.\37\ The commenter
strongly supports FINRA's proposed amendments, stating that the
proposal aligns FINRA's quiet period requirements and filing exclusion
applicable to covered investment funds with the SEC's rules adopted to
implement the FAIR Act and does so in a manner that is streamlined and
straightforward.\38\ The commenter believes FINRA's clarification of
the applicability of quiet periods of Rule 2241 removes a potential
ambiguity and impediment to broker-dealers' use of the safe harbor.\39\
The commenter agrees with FINRA's determination that the proposed
filing exclusion in FINRA Rule 2210 for covered investment fund
research reports not differ from the standard adopted by the SEC in
Rule 139b.\40\ The commenter strongly supports this streamlined
approach proposed by FINRA as benefitting investors, funds and broker-
dealers by
[[Page 43836]]
ensuring broker-dealers producing such reports need only conduct one
legal analysis to comply with both the SEC and FINRA rules.\41\
According to the commenter, the streamlined amendments would help
facilitate broker-dealers' use of the safe harbor which the commenter
believes would generate useful fund information for investors.\42\
---------------------------------------------------------------------------
\37\ See supra note 5.
\38\ See ICI Letter.
\39\ Id.
\40\ Id.
\41\ Id.
\42\ Id.
---------------------------------------------------------------------------
IV. Discussion and Commission Findings
After careful review of the proposed rule change and the comment
letter, the Commission finds that the proposal is consistent with the
requirements of the Exchange Act and the rules and regulations
thereunder that are applicable to a national securities
association.\43\ Specifically, the Commission finds that the proposed
rule change is consistent with Section 15A(b)(6) of the Exchange
Act,\44\ which requires, among other things, that FINRA rules be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------
\43\ In approving this rule change, the Commission has
considered the rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
\44\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------
Protection of Investors and the Public Interest
The Commission considers FINRA's proposed changes to the FINRA Rule
2241 quiet periods applicable to publication of covered investment fund
research reports to be consistent with the language and purposes of the
FAIR Act. In addition, the Commission believes that FINRA's additional
proposed change to eliminate quiet periods applicable to public
appearances involving an offering of covered investment fund securities
provides consistency and clarity with respects to members that produce
research reports for covered investment funds.
The Commission believes that the proposed rule change would clarify
the applicability of FINRA Rule 2241 quiet periods to covered
investment funds that are subject of a research report, as well as
further the purposes of the FAIR Act which directed the SEC to extend
the current safe harbor available under Securities Act Rule 139 to a
covered investment fund research report. The Commission believes the
extension of the safe harbor in Rule 139b should improve investors'
access to potentially useful and timely information about such covered
investment funds which furthers the public interest. The consistency of
standards in Rule 139b and FINRA Rule 2241 provides clarity to broker-
dealers, funds and their affiliates which in turn reduces the cost of
compliance.
The Commission also believes that the proposed filing exclusion
under FINRA Rule 2210 for covered investment fund research reports that
qualify for the Rule 139b safe harbor is consistent with the FAIR Act's
intent to increase the volume and publication of research reports on
covered investment funds subject to appropriate conditions. The
Commission believes that this proposed rule change will improve
efficiency and reduce regulatory burden without diminishing investor
protection. Specifically, the consistency of standards in Rule 139b and
FINRA Rule 2210 provides clarity to broker-dealers, funds and their
affiliates as to which research reports constitute ``covered investment
fund research reports,'' which in turn reduces the cost of compliance.
In addition, FINRA retains other methods to review covered investment
fund research reports, such as through examinations, targeted sweeps,
or spot checks. Thus, the Commission considers proposed FINRA Rule 2210
and its consistency with the Rule 139b safe harbor as a clear and
appropriate approach to furthering the purposes of the FAIR Act and is
consistent with protecting investors and the public interest.
Taking into consideration FINRA's views and the commenter's
support, the Commission believes that the proposal is consistent with
the Exchange Act. In particular, the Commission believes that the
proposed rule change is appropriate and designed to protect investors
and the public interest, consistent with Section 15(A)(b)(6) of the
Exchange Act. For these reasons, the Commission finds that the proposed
rule change is consistent with the Exchange Act and the rules and
regulations thereunder.
V. Conclusion
It is therefore ordered pursuant to Section 19(b)(2) of the
Exchange Act \45\ that the proposal (SR-FINRA-2018-019), be and hereby
is approved.
---------------------------------------------------------------------------
\45\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\46\
---------------------------------------------------------------------------
\46\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-18076 Filed 8-21-19; 8:45 am]
BILLING CODE 8011-01-P