[Federal Register Volume 86, Number 105 (Thursday, June 3, 2021)]
[Notices]
[Pages 29823-29826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11608]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92044; File No. SR-FINRA-2021-012]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing and Immediate Effectiveness of 
Proposed Rule Change To Eliminate the Per-Transaction Fee for Late and 
Corrective Reports to the FINRA/Nasdaq TRF and To Increase the 
Participation Fee

May 27, 2021.
    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 May 26, 2021, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by FINRA. FINRA has 
designated the proposed rule change as ``establishing or changing a 
due, fee or other charge'' under Section 19(b)(3)(A)(ii) of the Act \3\ 
and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposal 
effective upon receipt of this filing by the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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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 7620A to eliminate the per-
transaction fee for late reports and corrective transactions that is 
currently imposed on non-Retail Participants that use the FINRA/Nasdaq 
Trade Reporting Facility Carteret (the ``FINRA/Nasdaq TRF Carteret'') 
and the FINRA/Nasdaq Trade Reporting Facility Chicago (the ``FINRA/
Nasdaq TRF Chicago'') (collectively, the ``FINRA/Nasdaq TRF'') and to 
increase the Participation Fee to account for the overhead costs 
associated with processing late and corrective transaction reports.
    The text of the proposed rule change is available on FINRA's 
website 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 FINRA/Nasdaq TRF is a facility of FINRA that is operated by 
Nasdaq, Inc. (``Nasdaq''). In connection with the establishment of the 
FINRA/Nasdaq TRF, FINRA and Nasdaq entered into a limited liability 
company agreement (the ``LLC Agreement''). Under the LLC Agreement, 
FINRA, the ``SRO Member,'' has sole regulatory responsibility for the 
FINRA/Nasdaq TRF. Nasdaq, the ``Business Member,'' is primarily 
responsible for the management of the FINRA/Nasdaq TRF's business 
affairs, including establishing pricing for use of the FINRA/Nasdaq 
TRF, to the extent those affairs are not inconsistent with the 
regulatory and oversight functions of FINRA. Additionally, the Business 
Member is obligated to pay the cost of regulation and is entitled to 
the profits and losses, if any, derived from the operation of the 
FINRA/Nasdaq TRF.
    Pursuant to FINRA Rule 7620A, Participants \5\ are charged fees and 
may qualify for fee caps for reporting to the FINRA/Nasdaq TRF. Nasdaq 
administers these rules on behalf of FINRA \6\ in its capacity as the 
Business Member and operator of the FINRA/Nasdaq TRF. In addition, 
pursuant to the contractual arrangements establishing the FINRA/Nasdaq 
TRF, Nasdaq collects and is entitled to all fees on behalf of the 
FINRA/Nasdaq TRF.
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    \5\ The term ``Trade Reporting Participant'' or ``Participant'' 
is defined as any member of FINRA in good standing that uses the 
System. See FINRA Rule 7210A(k).
    \6\ FINRA's oversight of this function performed by the Business 
Member is conducted through a recurring assessment and review of TRF 
operations by an outside independent audit firm.
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    Currently, non-Retail Participants are charged a per-transaction 
fee for late and corrective transaction reports. Specifically, the 
FINRA/Nasdaq TRF imposes a ``Late Report--T+N'' fee of $0.288 per trade 
on the Executing Party \7\ for trade reports submitted one or more days 
after the date of the trade (T+N). In addition, Participants are 
charged $0.25 per trade to correct previously submitted trade reports. 
The reporting party is charged the fee when the correction is due to 
cancellation of a trade execution, a reporting error, or an ``inhibit'' 
or a ``kill'' transaction. Both parties to the trade are charged the 
fee when the correction is due to ``break'' or ``decline'' 
transactions. The FINRA/Nasdaq TRF assesses these fees primarily to 
address its administrative

[[Page 29824]]

burden of processing error corrections and late submissions.
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    \7\ Supplementary Material .01 of FINRA Rule 7620A defines 
``Executing Party (EP)'' as the member with the trade reporting 
obligation under FINRA rules. Under FINRA Rule 6380A(b), in a trade 
between a member and non-member or customer, the member has the 
obligation to report the trade, and in a trade between two members, 
the member that receives an order for handling or execution or is 
presented an order against its quote, does not subsequently re-route 
the order, and executes the transaction, has the obligation to 
report the trade.
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    Historically, particularly when trade reporting was more manual in 
nature and trade volume was lower, a per-transaction fee was 
appropriate because the FINRA/Nasdaq TRF's efforts to address late and 
erroneous reports were discrete and the costs of those efforts could be 
more readily allocated to individual Participants. Today, the costs to 
the FINRA/Nasdaq TRF of processing errors and late trade reports no 
longer correlate directly to the number or size of late trade reports 
or corrective transactions. In recent years, trade reporting activity 
on the FINRA/Nasdaq TRF has grown substantially, and often if trade 
reporting errors occur, they will be large in number (e.g., where such 
errors are due to a systems coding error). However, late reports and 
corrective transactions that Participants submit to the FINRA/Nasdaq 
TRF electronically through FIX may not necessarily require substantial 
time or effort for the FINRA/Nasdaq TRF operations team to address, 
even if they involve a large number of trades, because the process for 
addressing reports submitted in this manner is now largely automated. 
By contrast, even a small number of late or corrective transaction 
reports may require significant operational support to address if they 
involve batch uploads or manual submissions, or if the errors are 
complex to fix. In sum, the costs to the FINRA/Nasdaq TRF of addressing 
late or erroneous trade reports no longer correlate directly on a per 
trade basis. For example, a Participant with upload capabilities may 
spend hours working with Nasdaq Operations to properly format an upload 
file, whereas a Participant that tests a large standardized FIX 
submission for late or corrective activity in the Nasdaq Test Facility 
may replicate the entry in production in seconds or minutes with no 
Nasdaq Operations support.
    Rather than continue to assess a fee that does not correlate to the 
actual costs of processing a Participant's late reports or error 
corrections, or attempt the complex and burdensome task of allocating 
those actual costs to a Participant based upon its specific late report 
or correction scenario, Nasdaq, as the Business Member, proposes 
instead to treat these costs as general overhead that all non-Retail 
Participants will bear as part of the monthly Participation Fee.
    Currently, the FINRA/Nasdaq TRF charges its Participants (other 
than Retail Participants) a $350 per month Participation Fee, which 
exists to ``defray certain shared and common costs associated with the 
operation of the FINRA/Nasdaq TRF, including overhead costs and the 
costs of developing, maintaining, and upgrading shared technology.'' 
\8\ The Participation Fee ensures that all non-Retail Participants in 
the FINRA/Nasdaq TRF--both large and small--bear at least some baseline 
responsibility for the upkeep and administration of the facilities.\9\
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    \8\ See Securities Exchange Act Release No. 83866 (August 16, 
2018), 83 FR 42545, 42548 (August 22, 2018) (Notice of Filing and 
Immediate Effectiveness of File No. SR-FINRA-2018-029).
    \9\ See supra note 8.
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    Nasdaq, as the Business Member, believes that treating the costs of 
processing Participants' late or corrective transaction reports as 
overhead and incorporating them in the Participation Fee is appropriate 
because such costs are necessary for the proper administration of the 
FINRA/Nasdaq TRF. The FINRA/Nasdaq TRF must devote staff and other 
resources to processing late and corrective transaction reports 
regardless of the total number or frequency of such reports. Nasdaq 
estimates that in 2020, the FINRA/Nasdaq TRF incurred approximately 
$740,000 to provide operational, business, and development support for 
late and corrective activity. This support comprised the equivalent of 
three full-time employees, customer technical guidance, FIX testing 
support, upload testing and processing support, system and trade 
processing review, and trade review. In addition, a majority of FINRA/
Nasdaq TRF Participants submitted late or corrective transaction 
reports last year. Nasdaq notes that more than 60 percent of 
Participants incurred fees for late or corrective transaction reports 
at least once in 2020. Specifically, in 2020, 371 firms submitted a 
total of 1,248,568 cancellations and 298 firms submitted a total of 
976,228 late reports to the FINRA/Nasdaq TRF.\10\ As such, Nasdaq 
believes it would be equitable for the FINRA/Nasdaq TRF to allocate 
these costs among all non-Retail Participants going forward.
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    \10\ Late and corrective transaction reports nonetheless make up 
a very small percentage of overall trade reporting activity on the 
FINRA/Nasdaq TRF. For example, in 2020, 2.2 million late or 
corrective transactions were processed compared to over three 
billion trade executions reported to the FINRA/Nasdaq TRF. In 
addition, in 2020, 99.94% of trades reported to the FINRA/Nasdaq TRF 
were reported within 10 seconds, in compliance with FINRA rules. By 
way of comparison, in 2020, 99.82% of trades reported to the FINRA/
NYSE TRF were reported within 10 seconds.
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    To account for the costs of addressing late and erroneous trade 
reports, Nasdaq, as the Business Member, proposes to increase the 
Participation Fee for all Participants (other than Retail Participants, 
which are not subject to the fee under current rules) from $350 to $450 
per month. The proposed $100 increase is based on $740,000 operating 
costs for three full-time equivalent staff and other resources divided 
across the 620 non-Retail Participants on the FINRA/Nasdaq TRF.
    FINRA and Nasdaq, as the Business Member, do not believe that the 
proposed rule change will diminish incentives for Participants to 
report their trades correctly and in a timely manner, as required by 
FINRA rules. The FINRA/Nasdaq TRF late and corrective transaction 
report fees are primarily intended to address the administrative burden 
of processing corrections and late trade reports. While these fees may 
generally encourage the correct reporting of transaction data, they are 
not intended to serve a disciplinary function, even for Participants 
that report trades erroneously or late in large numbers. Separate and 
apart from the FINRA/Nasdaq TRF late and corrective transaction report 
fees, FINRA rules require Participants to report their trades in a 
timely manner, and firms have an ongoing obligation to report trade 
information accurately and completely.\11\ To the extent that a 
Participant fails to comply with those rules, the Participant may be 
subject to a FINRA enforcement action or sanctions. The specter of such 
enforcement actions and sanctions--rather than the FINRA/Nasdaq TRF 
per-transaction correction and late fees--will continue to provide an 
adequate incentive for Participants to endeavor to avoid large-scale 
trade reporting errors and late reports.
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    \11\ See, e.g., FINRA Rules 6380A(a)(1) and 7260A. FINRA notes 
that firms that report to the FINRA/NYSE TRF have the same 
obligations under FINRA rules (see FINRA Rules 6380B(a)(1) and 
7260B); however, the FINRA/NYSE TRF does not charge a separate fee 
for late or corrective transaction reports. As noted above, the 
rates of timely reporting to the FINRA/Nasdaq TRF and FINRA/NYSE TRF 
in 2020 were 99.94% and 99.82%, respectively.
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    FINRA has filed the proposed rule change for immediate 
effectiveness. The operative date will be June 1, 2021.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(5) of the Act,\12\ which requires, among 
other things, that FINRA rules provide for the equitable allocation of 
reasonable dues, fees, and other charges among members and issuers and 
other persons using any facility or system that FINRA operates or 
controls. As an initial matter, all non-Retail Participants are subject 
to the

[[Page 29825]]

same fees and access to the FINRA/Nasdaq TRF is offered on fair and 
nondiscriminatory terms.
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    \12\ 15 U.S.C. 78o-3(b)(5).
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The Proposal Is Reasonable
    Nasdaq, as the Business Member, believes the proposals are 
reasonable to: (i) Eliminate the per-transaction fee for late reports 
and corrective transactions; and (ii) instead allocate the costs of 
late and corrective activity as overhead to all non-Retail Participants 
by increasing the monthly Participation Fee.
    As discussed above, the costs that the FINRA/Nasdaq TRF incurs to 
process corrective and late reports no longer correlate directly to the 
number or size of such reports that a Participant submits. Similarly, 
these costs have become difficult to correlate to a particular 
Participant given the idiosyncratic nature of many late reports and 
corrective transactions and the varying levels of operational support 
that are required to address them. Finally, as noted above, a majority 
of non-Retail Participants submitted late or corrective transaction 
reports at least once in 2020. Accordingly, Nasdaq believes that it 
would be reasonable and equitable to require all non-Retail 
Participants to bear these costs as part of the overhead costs of 
operating the FINRA/Nasdaq TRF.
The Proposal is an Equitable Allocation of Fees and Is Not Unfairly 
Discriminatory
    Nasdaq, as the Business Member, believes that the proposed rule 
change will allocate fees fairly among FINRA/Nasdaq TRF Participants.
    As a threshold matter, Nasdaq believes that the existing formula is 
no longer appropriate because it may result in a Participant paying a 
fee that does not correlate to the actual costs of processing the 
Participant's late or corrective transaction reports. Currently, a 
Participant may incur a large fee to correct a coding or other system 
error that impacts a large number of trades, even though the FINRA/
Nasdaq TRF is able to facilitate correction of the error on an 
automated basis with minimal operational support. Meanwhile, another 
Participant may incur a small fee to correct an error in a single trade 
even though the error may be complex and require significant time and 
support to fix.
    Nasdaq intends for the proposal to allocate the costs of processing 
late and corrective reports in a manner that is more equitable to 
Participants than the existing formula. As discussed above, Nasdaq 
believes that these costs are appropriately classified as overhead in 
that: (i) They involve staff and other resources that the FINRA/Nasdaq 
TRF dedicates for use in processing late and corrective reports 
regardless of the frequency or size of such reports; (2) these 
resources and costs are necessary for the proper operation of the 
FINRA/Nasdaq TRF; and (3) the majority of Participants make use of such 
resources. Additionally, these costs are difficult to correlate 
accurately to particular Participants due to the idiosyncratic nature 
of many late or corrective transaction reports and the varying levels 
of operational support that they require. The proposed rule change 
would avoid this difficulty by requiring all non-Retail Participants to 
bear these costs equally.
    Going forward, non-Retail Participants with large numbers of late 
or corrective transaction reports will benefit from the proposed rule 
change because the additional amount that they pay in the Participation 
Fee will be less than the per-transaction late or corrective fee they 
would pay under the current formula. By contrast, non-Retail 
Participants with no or a small number of late or corrective 
transaction reports might incur a larger fee than they do now, through 
the increase in the Participation Fee. Nasdaq, as the Business Member, 
believes that these potentially disparate effects are not unfairly 
discriminatory because any Participant has the potential to submit late 
or corrective transaction reports in the future, even if they have not 
done so in the past, and thus all have the potential to benefit from 
the proposed rule change. For example, 13% of firms with late or 
corrective activity in 2020 did not have any late or corrective 
activity in 2019. Conversely, 15% of firms with late or corrective 
activity in 2019 did not have any late or corrective activity in 2020.
    Moreover, the proposed $100 monthly increase in the Participation 
Fee is small in an absolute sense, as well as small relative to the 
overall fees that Participants typically incur on the FINRA/Nasdaq TRF. 
As such, any adverse impact of the proposed rule change on Participants 
that currently pay little or no fees for late or corrective activity is 
likely to be nominal. Nasdaq notes that the FINRA/Nasdaq TRF has not 
raised the Participation Fee since the fee was first established in 
2018, despite the fact that the costs of operating the FINRA/Nasdaq TRF 
generally grow one to two percent per year (in keeping with cost of 
living adjustments), and the FINRA/Nasdaq TRF continues to invest in 
developing, maintaining, and upgrading its technology.
    Nasdaq does not believe that it is inequitable or unfairly 
discriminatory to charge the same fee to each non-Retail Participant to 
cover the costs of addressing late or corrective activity, even though 
some Participants may need to address such activity more frequently or 
at higher volumes than others. The existing Participation Fee already 
allocates other overhead costs of operating the FINRA/Nasdaq TRF in the 
same manner, even though some Participants may be more heavy users of 
the TRF, and thus may account for more electric power, computer 
equipment, and other overhead costs than other Participants.
    Finally, Nasdaq believes that it is not inequitable or unfairly 
discriminatory to exempt Retail Participants from the increased 
Participation Fee. Under current rules, Retail Participants are exempt 
from paying the Participation Fee as well as the per-transaction fee 
for late and corrective transaction reports.\13\
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    \13\ See FINRA Rule 7620A. See also Securities Exchange Act 
Release No. 83866 (August 16, 2018), 83 FR 42545 (August 22, 2018) 
(Notice of Filing and Immediate Effectiveness of File No. SR-FINRA-
2018-029) and Securities Exchange Act Release No. 88135 (February 6, 
2020), 85 FR 8079 (February 12, 2020) (Notice of Filing and 
Immediate Effectiveness of File No. SR-FINRA-2020-004).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule changes will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.
Intramarket Competition
    Nasdaq, as the Business Member, does not believe that the proposed 
rule change will place any category of Participants at a competitive 
disadvantage. The proposed increase in the Participation Fee will apply 
equally to all Participants (other than to Retail Participants, which 
as noted above, are exempt from paying the Participation Fee under 
current rules). The proposed rule change will ensure non-Retail 
Participants share responsibility for the costs of correcting trade 
reports or reporting late trades as they already do for other types of 
overhead costs. Additionally, Participants are free to report their 
trades to another FINRA trade reporting facility (``TRF'') to the 
extent they believe that the assessed fees are not attractive. Price 
competition between the TRFs is substantial, with trade reporting 
activity and market share moving between them in reaction to fee 
changes.

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Intermarket Competition
    Nasdaq believes that the proposed rule change will not impose a 
burden on competition among the TRFs because use of the FINRA/Nasdaq 
TRF is completely voluntary and subject to competition.\14\ Nasdaq, as 
the Business Member, believes that the proposed rule change will 
strengthen the competitive position of the FINRA/Nasdaq TRF with 
respect to competing TRFs and will support increased competition in the 
market.
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    \14\ Because the FINRA/Nasdaq TRF and the FINRA/NYSE TRF are 
operated by different business members competing for market share, 
FINRA does not take a position on whether the pricing for one TRF is 
more favorable or competitive than the pricing for the other TRF.
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    Moreover, Nasdaq, as the Business Member, believes that the 
proposed rule change is necessary for the FINRA/Nasdaq TRF to retain 
trade reporting business and to compete for new business since 
customers evaluate product and pricing when they evaluate where to 
submit their trade reports. Nasdaq notes that the competing TRF does 
not charge a separate fee to report late trades or to correct 
previously submitted trade reports, and Nasdaq believes that the 
proposed rule change will reduce any price differential between the 
competing TRFs in this regard. Accordingly, Nasdaq believes that the 
risk that this proposed rule change will impose an undue burden on 
intermarket competition is extremely limited.
    If market participants determine that the changes proposed herein 
are inadequate or unattractive, it is likely that the FINRA/Nasdaq TRF 
will lose market share as a result. Accordingly, Nasdaq believes that 
the proposed rule change will not impair the ability of the other TRF 
to maintain its competitive standing.

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

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \15\ and paragraph (f)(2) of Rule 19b-4 
thereunder.\16\ At any time within 60 days of the filing of the 
proposed rule change, the Commission summarily may temporarily suspend 
such rule change if it appears to the Commission that such action is 
necessary or appropriate in the public interest, for the protection of 
investors, or otherwise in furtherance of the purposes of the Act. If 
the Commission takes such action, the Commission shall institute 
proceedings to determine whether the proposed rule should be approved 
or disapproved.
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    \15\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \16\ 17 CFR 240.19b-4(f)(2).
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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-2021-012 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-FINRA-2021-012. 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 website (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 website 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-FINRA-2021-012 and should be submitted 
on or before June 24, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11608 Filed 6-2-21; 8:45 am]
BILLING CODE 8011-01-P