[Federal Register Volume 89, Number 14 (Monday, January 22, 2024)]
[Notices]
[Pages 3968-3979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01068]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99351; File No. SR-FINRA-2024-001]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend 
FINRA Rule 3240 (Borrowing From or Lending to Customers)

January 16, 2024.
    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 2, 2024, the 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 Rule 3240 (Borrowing From or Lending to 
Customers) to strengthen the general prohibition against borrowing and 
lending arrangements, narrow some of the existing exceptions to that 
general prohibition, modernize the immediate family exception, and 
enhance the requirements for giving notice to members and obtaining 
members' approval of such arrangements.
    The text of the proposed rule change is available on FINRA's 
website at https://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
    Rule 3240 generally prohibits, with exceptions, registered persons 
from borrowing money from or lending money to their customers. The rule 
has five tailored exceptions, available only when the registered 
person's member firm has written procedures allowing the borrowing and 
lending of money between such registered persons and customers of the 
member, the borrowing or lending arrangements meet the conditions in 
one of the exceptions \3\ and, when required, the registered person 
notifies the member of a borrowing or lending arrangement, prior to 
entering into such arrangement, and

[[Page 3969]]

obtains the member's pre-approval in writing. The exceptions are for 
limited situations where the likelihood that the registered person and 
customer entered into the borrowing or lending arrangement by virtue of 
the broker-customer relationship is reduced, and the potential risks 
are outweighed by the potential benefits of allowing registered persons 
to enter into arrangements with such customers.
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    \3\ See Rule 3240(a)(2)(A) (the ``immediate family exception''); 
Rule 3240(a)(2)(B) (the ``financial institution exception''); Rule 
3240(a)(2)(C) (the ``registered persons exception''); Rule 
3240(a)(2)(D) (the ``personal relationship exception''); Rule 
3240(a)(2)(E) (the ``business relationship exception'').
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    Rule 3240 was last amended in 2010, when it became part of the 
consolidated FINRA rulebook.\4\ In August 2019, FINRA launched a 
retrospective review of Rule 3240, as part of a larger retrospective 
review of FINRA's rules and administrative processes that help protect 
senior investors from financial exploitation.\5\ In December 2021, 
FINRA published Regulatory Notice 21-43 (``Notice 21-43''), which (1) 
summarized the predominant themes that emerged during the retrospective 
review of Rule 3240; (2) issued guidance concerning approvals of 
permissible borrowing or lending arrangements; and (3) based on 
feedback received during the retrospective rule review, sought comment 
on proposed amendments to Rule 3240.\6\
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    \4\ See Regulatory Notice 10-21 (April 2010).
    \5\ See Regulatory Notice 19-27 (August 2019). In October 2020, 
FINRA published a report that summarized other aspects of that 
retrospective rule review. See Regulatory Notice 20-34 (October 
2020).
    \6\ In Notice 21-43, FINRA also discussed some similarities and 
differences between Rule 3240 and the federal and state regulatory 
approaches for investment advisers and their supervised persons, and 
encouraged a broader dialogue about whether a more uniform 
regulatory approach would enhance investor protection.
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Proposed Rule Change
    FINRA is proposing to amend Rule 3240 to strengthen the general 
prohibition against borrowing and lending arrangements, narrow some of 
the existing exceptions to that general prohibition, modernize the 
immediate family exception, and enhance the requirements for giving 
notice to members and obtaining members' approval of such 
arrangements.\7\
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    \7\ Where appropriate in context, FINRA refers herein to 
``borrowing and lending'' rather than ``borrowing or lending.'' No 
references to ``borrowing and lending,'' however, should be 
interpreted to mean that Rule 3240 only applies to arrangements that 
have both a borrowing component and a separate lending component. 
Rule 3240 generally prohibits registered persons from borrowing 
money from or lending money to a customer.
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The General Prohibition on Borrowing From or Lending to Customers
    Rule 3240 generally prohibits registered persons from borrowing 
from or lending to their customers. To make this regulatory purpose 
more prominent, the proposed rule change would amend the rule's title 
from ``Borrowing From or Lending to Customers'' to ``Prohibition on 
Borrowing From or Lending to Customers,'' and change the title of Rule 
3240(a) from ``Permissible Lending Arrangements; Conditions'' to 
``General Prohibition; Permissible Borrowing or Lending Arrangements; 
Conditions.'' These changes would emphasize that the rule is, first and 
foremost, a general prohibition.
    In addition, the proposed rule change would strengthen this general 
prohibition in three ways. First, Rule 3240(a) would be amended to 
clarify that the rule's general requirements concerning borrowing and 
lending arrangements--including the general prohibition--apply to 
arrangements that pre-exist a new broker-customer relationship. 
Currently, Rule 3240(a) begins, ``[n]o person associated with a member 
in any registered capacity may borrow money from or lend money to any 
customer of such person . . . .'' FINRA is proposing to amend this 
introductory clause in Rule 3240(a) to also prohibit registered persons 
from initiating a broker-customer relationship with a person with whom 
the registered person has an existing borrowing or lending arrangement.
    Second, FINRA is proposing to add Rule 3240.02 (Customer). Proposed 
Rule 3240.02 would define ``customer'' to include, for purposes of Rule 
3240, any customer that has, or in the previous six months had, a 
securities account assigned to the registered person at any member. 
This would extend the rule's limitations to borrowing or lending 
arrangements entered into within six months after a broker-customer 
relationship terminates. This proposed definition would align with the 
definition of ``customer'' in FINRA Rule 3241 (Registered Person Being 
Named a Customer's Beneficiary or Holding a Position of Trust for a 
Customer), a rule that addresses similar types of conflicts.\8\
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    \8\ See Rule 3241.01 (Customer).
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    Third, FINRA is proposing to add Rule 3240.05 (Arrangements with 
Persons Related to Either the Registered Person or the Customer). 
Proposed Rule 3240.05 would extend the rule's requirements to borrowing 
or lending arrangements that involve similar conflicts as ones 
presented by arrangements directly between registered persons and their 
customers. Specifically, proposed Rule 3240.05 would provide that ``[a] 
registered person instructing or asking a customer to enter into a 
borrowing or lending arrangement with a person related to the 
registered person (e.g., the registered person's immediate family 
member or outside business) or to have a person related to the customer 
(e.g., the customer's immediate family member or business) enter into a 
borrowing or lending arrangement with the registered person would 
present similar conflict of interest concerns as borrowing or lending 
arrangements between the registered person and the customer and would 
not be consistent with this Rule [3240] unless the conditions set forth 
in [Rule 3240(a)(1), (2), and (3)] are satisfied.'' \9\ This would 
address the potential for customer abuse that arises when a registered 
person induces a customer to enter into a borrowing or lending 
arrangement with a person or entity related to the registered person 
or, likewise, induces a customer to have a person or entity related to 
the customer enter into an arrangement with the registered person.\10\
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    \9\ The conditions in Rule 3240(a)(1), (2) and (3) are that the 
member has written procedures allowing the borrowing or lending of 
money between registered persons and customers; the borrowing or 
lending arrangement meets one of the conditions; and the 
notification and approval requirements are satisfied.
    \10\ Proposed Rule 3240.05 is based, in part, on feedback 
received during the retrospective review that some registered 
persons attempt to circumvent Rule 3240 by structuring arrangements 
with persons related to the registered person or the customer.
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    In addition, FINRA is proposing to add Rule 3240.03 (Owner-
Financing Arrangements) to expressly state that, for purposes of Rule 
3240, borrowing or lending arrangements include owner-financing 
arrangements. For example, Rule 3240 would apply to situations where a 
registered person purchases real estate from his customer, the customer 
agrees to finance the purchase, and the registered person provides a 
promissory note for the entire purchase price or arranges to pay in 
installments.\11\
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    \11\ See, e.g., James K. Breeze, Letter of Acknowledgment, 
Waiver and Consent, Case ID 2008012846501 (June 30, 2009); Vincenzo 
G. Covino, Letter of Acknowledgment, Waiver and Consent, Case ID 
2009020793901 (Feb. 9, 2012).
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The ``Immediate Family'' Definition
    One of the few exceptions to Rule 3240's general prohibition is for 
borrowing or lending arrangements with a customer who is a member of 
the registered person's immediate family.\12\ Currently, Rule 3240(c) 
defines ``immediate family'' to mean ``parents, grandparents, mother-
in-law or father-in-law, husband or wife, brother or sister, brother-
in-law or sister-in-law, son-in-law or daughter-in-law, children, 
grandchildren, cousin, aunt or uncle, or niece or nephew, and any other 
person

[[Page 3970]]

whom the registered person supports, directly or indirectly, to a 
material extent.''
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    \12\ See Rule 3240(a)(2)(A).
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    During the retrospective review of Rule 3240, FINRA received 
feedback that the definition of ``immediate family'' should be 
modernized. The proposed rule change would modernize the ``immediate 
family'' definition to match the definition of the same term in Rule 
3241, which also has exceptions for situations in which the customer is 
a member of the registered person's immediate family.\13\ Specifically, 
the proposed rule change to Rule 3240(c) would replace ``husband or 
wife'' with ``spouse or domestic partner'' and amend the definition so 
that it ``includes step and adoptive relationships.'' In addition, the 
``any other person'' clause would be revised to be limited to ``any 
other person who resides in the same household as the registered person 
and the registered person financially supports, directly or indirectly, 
to a material extent.''
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    \13\ See Rule 3241(a)(1)(A) and (a)(2)(A) and (c).
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The Personal Relationship and Business Relationship Exceptions
    Currently, two exceptions to the rule's general prohibition are for 
arrangements based on (1) a ``personal relationship with the customer, 
such that the loan would not have been solicited, offered, or given had 
the customer and the registered person not maintained a relationship 
outside of the broker-customer relationship''; and (2) a ``business 
relationship outside of the broker-customer relationship.'' \14\ Due to 
concerns expressed during the retrospective review of Rule 3240 that 
the personal relationship exception may be exploited--and to make more 
clear what kinds of personal relationships would be within the 
exception--FINRA proposes to narrow the personal relationship exception 
to arrangements that are based on a ``bona fide, close personal 
relationship between the registered person and the customer maintained 
outside of, and formed prior to, the broker-customer relationship.'' 
\15\ This language would replace the requirement that ``the loan would 
not have been solicited, offered, or given had the customer and the 
registered person not maintained a relationship outside of the broker-
customer relationship'' to narrow the scope of the exception and 
clarify the types of relationships that would be within the exception. 
For similar reasons, FINRA proposes to amend the business relationship 
exception to be limited to arrangements that are based on a ``bona fide 
business relationship outside of the broker-customer relationship.'' 
\16\
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    \14\ See Rule 3240(a)(2)(D) and (E). Although Rule 3240(a)(2)(D) 
and (E) refer to ``the lending arrangement,'' and do not explicitly 
mention a ``borrowing arrangement,'' these exceptions are not 
intended to exclude borrowing arrangements. FINRA therefore proposes 
a technical amendment to make clear that those exceptions apply to 
``borrowing or lending'' arrangements based on a personal 
relationship or a business relationship.
    \15\ Where appropriate in context, FINRA refers herein to 
proposed Rule 3240(a)(2)(D) as the ``close personal relationship 
exception.'' See also supra note 3 (defining current Rule 
3240(a)(2)(D) as the ``personal relationship exception'').
    \16\ The term ``bona fide'' in the close personal relationship 
and business relationship exceptions was not included in the 
proposal in Notice 21-43. FINRA proposes to add the term ``bona 
fide'' to emphasize that for either of these exceptions to apply, 
the close personal relationship or business relationship must be 
legitimate. Adding the term ``bona fide'' would also align with 
language in proposed Rule 3240.04, discussed below.
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    In addition to narrowing the personal relationship and business 
relationship exceptions, FINRA is proposing to add Rule 3240.04 (Close 
Personal Relationships; Business Relationships), which would provide 
factors for evaluating whether a borrowing or lending arrangement is 
based on a close personal relationship or a business relationship. The 
proposed factors would include, but would not be limited to, when the 
relationship began, its duration and nature, and any facts suggesting 
that the relationship is not bona fide or was formed with the purpose 
of circumventing the purpose of Rule 3240. Proposed Rule 3240.04 is 
intended to help establish the scope of the close personal relationship 
and business relationship exceptions, focus on the most relevant 
factors when evaluating whether a close personal relationship or 
business relationship exists, and ensure that members consider 
meaningfully the potential issues involved in the proposed arrangement.
    To provide even more guidance about the scope of the close personal 
relationship and business relationship exceptions, proposed Rule 
3240.04 would also provide illustrative examples of these 
relationships. Specifically, it would provide that examples of 
relationships that are close personal relationships include, but are 
not limited to, a childhood or long-term friend, a godparent, and other 
similarly close relationships. Additionally, proposed Rule 3240.04 
would provide that an example of a business relationship includes, but 
is not limited to, a loan from a registered person to a small outside 
business that the registered person co-owned for years for the sole 
purpose of providing the business with additional operating 
capital.\17\
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    \17\ The proposal in Notice 21-43 did not include an 
illustrative example of a business relationship in proposed Rule 
3240.04. It has been added in response to comments to Notice 21-43 
requesting examples of relationships within that exception.
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Notification and Approval Requirements
    The proposed rule change would also amend Rule 3240's notification 
and approval requirements. Currently, Rule 3240(b) contains 
notification and approval requirements for borrowing or lending 
arrangements within the five exceptions, which vary depending on which 
exception applies. With respect to the personal relationship, business 
relationship, and registered persons exceptions, Rule 3240(b)(1) 
provides that a registered person shall notify the member of borrowing 
or lending arrangements prior to entering into such arrangements, and 
that the member shall pre-approve in writing such arrangements.\18\ 
With respect to the immediate family member exception, Rule 3240(b)(2) 
provides, in pertinent part, that a member's written procedures may 
indicate that registered persons are not required to notify the member 
or receive member approval. With respect to the financial institution 
exception, Rule 3240(b)(3) provides, in pertinent part, that a member's 
written procedures may indicate that registered persons are not 
required to notify the member or receive member approval, provided that 
``the loan has been made on commercial terms that the customer 
generally makes available to members of the general public similarly 
situated as to need, purpose and creditworthiness.''
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    \18\ Rule 3240(b)(1) contains similar notification and approval 
requirements for modifications to borrowing or lending arrangements.
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    FINRA is proposing several amendments to all these notification and 
approval requirements. First, FINRA is proposing to amend Rule 
3240(b)(1) to clarify that, although registered persons are required to 
obtain the member's prior approval of arrangements within the close 
personal relationship, business relationship, or registered persons 
exceptions, the member is not required to approve such arrangements. As 
explained above, Rule 3240(b)(1) currently provides that the member 
``shall pre-approve'' such arrangements, which could imply incorrectly 
that the member must approve the arrangement or modification and may 
not disapprove it. To preclude this incorrect interpretation, the 
proposed rule change would delete the ``shall pre-approve'' language 
and instead require the

[[Page 3971]]

registered person to provide the member with notice of the arrangements 
or modifications ``prior to entering into such arrangements'' or 
``prior to the modification of such arrangements'' and ``obtain the 
member's approval.'' \19\
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    \19\ See proposed Rule 3240(b)(1)(A).
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    The proposed rule change would also amend the notification and 
approval requirements that apply to borrowing or lending arrangements 
within the registered persons, personal relationship and business 
relationship exceptions, to correspond with the proposed amendments 
that would clarify that the general prohibition applies to pre-existing 
arrangements. Specifically, proposed Rule 3240(b)(1)(B) would require 
registered persons, prior to the initiation of a broker-customer 
relationship at the member with a person with whom the registered 
person has an existing borrowing or lending arrangement, to notify the 
member in writing of existing arrangements within the registered 
persons, personal relationship and business relationship exceptions and 
obtain the member's approval in writing of the broker-customer 
relationship.\20\
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    \20\ In such situations, if the member does not approve the 
formation of a broker-customer relationship with the registered 
person who provided such notice, the customer would still be 
permitted to seek to initiate a broker-customer relationship with 
another registered person at the same member.
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    Further, the proposed rule change would require that all notices 
required under Rule 3240 be in writing and retained by the member. 
Currently, Rule 3240 does not specify that notice must be given in 
writing, and the record-retention provision in Rule 3240.01 requires 
members only to preserve written approvals. The proposed rule change 
would require registered persons to give written notice and require 
members to preserve records of such written notice for at least three 
years.\21\
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    \21\ See proposed amendments to Rule 3240(b)(1)(A) and (b)(1)(B) 
and Rule 3240.01. Rule 3240.01 would also be amended to provide that 
the record-retention requirements are for purposes of Rule 3240(b), 
not just Rule 3240(b)(1). As explained above, Rule 3240(b)(1) 
requires notice and approval of arrangements that are within the 
personal relationship, business relationship, and registered persons 
exceptions. While Rule 3240(b)(2) and (3) do not expressly require 
notice and approval of arrangements within the immediate family 
member and financial institution exceptions, those subparagraphs 
imply that members may choose to require such notice and approval of 
those arrangements.
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    The proposed rule change would also amend the provisions that 
address notice and approval of arrangements within the immediate family 
and financial institution exceptions, to correspond with the proposed 
amendments that would clarify that the general prohibition applies to 
arrangements that pre-exist the broker-customer relationship. 
Currently, under Rule 3240(b)(2) and (3), the member's written 
procedures may indicate that registered persons are not required to 
notify the member or receive member approval of arrangements within the 
immediate family exception or arrangements within the financial 
institution exception that meet the additional conditions set forth in 
Rule 3240(b)(3). To extend these provisions to pre-existing 
arrangements, the proposed rule change would amend Rule 3240(b)(2) and 
(3) to provide that the member's procedures may also indicate that 
registered persons are not required to notify the member or receive 
member approval of such arrangements either prior to or subsequent to 
initiating a broker-customer relationship.
    Finally, in response to comments received in response to Notice 21-
43, the proposed rule change would establish new obligations on a 
member when receiving notice of a borrowing or lending arrangement. 
Specifically, FINRA is proposing to add Rule 3240.06 (Obligations of 
Member Receiving Notice). Proposed Rule 3240.06 would provide that upon 
receiving written notice under Rule 3240, the member shall perform a 
reasonable assessment of the risks created by the borrowing or lending 
arrangement with a customer, modification to the borrowing or lending 
arrangement with a customer, or existing borrowing or lending 
arrangement with a person who seeks to be a customer of the registered 
person. It would further provide that the member shall also make a 
reasonable determination of whether to approve the borrowing or lending 
arrangement, modification to the borrowing or lending arrangement, or, 
where there is an existing borrowing or lending arrangement with a 
person who seeks to be a customer of the registered person, the broker-
customer relationship. Proposed Rule 3240.06 would be similar to Rule 
3241(b)(1), which requires members to perform a ``reasonable 
assessment'' and ``reasonable determination'' when receiving notice of 
a registered person being named a customer's beneficiary or holding a 
position of trust for a customer, and to supplementary material to 
FINRA Rule 3270 (Outside Business Activities of Registered Persons) 
that provides factors members must consider upon receiving written 
notice of an outside business activity.\22\
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    \22\ See Rule 3270.01 (Obligations of Member Receiving Notice).
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    FINRA intends that a member's ``reasonable assessment'' and 
``reasonable determination'' for purposes of proposed Rule 3240.06 
would be informed by guidance that FINRA has already provided to 
members in Notice 21-43.\23\ Specifically, FINRA expects that a 
member's ``reasonable assessment'' would take into consideration 
several factors, such as:
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    \23\ FINRA has explained that this guidance was similar to 
general guidance that FINRA had published concerning the 
``reasonable assessment'' and ``reasonable determination'' 
requirements in Rule 3241. See Notice 21-43, at n.21 (citing Rule 
3241(b)(1), Regulatory Notice 20-38 (October 2020), and Securities 
Exchange Act Release No. 89218 (July 2, 2020), 85 FR 41249, 41251 
(July 9, 2020) (Notice of Filing of File No. SR-FINRA-2020-020)).
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    (1) any potential conflicts of interest in the registered person 
being in a borrowing or lending arrangement with a customer;
    (2) the length and type of relationship between the customer and 
registered person;
    (3) the material terms of the borrowing or lending arrangement;
    (4) the customer's or the registered person's ability to repay the 
loan;
    (5) the customer's age;
    (6) whether the registered person has been a party to other 
borrowing or lending arrangements with customers;
    (7) whether, based on the facts and circumstances observed in the 
member's business relationship with the customer, the customer has a 
mental or physical impairment that renders the customer unable to 
protect his or her own interests;
    (8) any disciplinary history or indicia of improper activity or 
conduct with respect to the customer or the customer's account (e.g., 
excessive trading); and
    (9) any indicia of customer vulnerability or undue influence of the 
registered person over the customer.
    This list is not intended to be exhaustive. Moreover, while a 
listed factor may not be applicable to a particular situation, the 
factors that a member considers should allow for a reasonable 
assessment of the associated risks so that the member can make a 
reasonable determination of whether to approve the borrowing or lending 
arrangement, modification to the borrowing or lending arrangement, or, 
where there is an existing borrowing or lending arrangement with a 
person who seeks to be a customer of the registered person, the broker-
customer relationship. FINRA does not expect a registered person's 
assertion that the registered person or the customer has no viable 
alternative person from whom to

[[Page 3972]]

borrow money to be dispositive in the member's assessment. If possible, 
as part of the member's reasonable assessment of the risks, FINRA would 
expect a member to try to discuss the arrangement with the 
customer.\24\
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    \24\ FINRA notes that the proposed rule change would impact 
members that have elected to be treated as capital acquisition 
brokers (``CABs''), given that the CAB Rules incorporate the 
impacted FINRA rule by reference.
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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.
2. Statutory Basis
    FINRA believes the proposed rule change is consistent with the 
provisions of section 15A(b)(6) of the Act,\25\ 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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    \25\ 15 U.S.C. 78o-3(b)(6).
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    FINRA believes that, by strengthening and modernizing Rule 3240, 
the proposed rule change would enhance investor protection. The 
proposed rule change would reduce risks to investors through 
incremental adjustments that strengthen the general prohibition against 
borrowing and lending arrangements and narrow the few exceptions to the 
rule. In addition, the proposed rule change would facilitate compliance 
by clarifying the scope of the general prohibition and the personal 
relationship and business relationship exceptions.

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

    FINRA does not believe that the proposed rule change would result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.
Economic Impact Assessment
    FINRA has undertaken an economic impact assessment, as set forth 
below, to further analyze the regulatory need for the proposed rule 
change, its potential economic impacts, including anticipated costs, 
benefits, and distributional and competitive effects relative to the 
current baseline, and the alternatives FINRA considered in assessing 
how best to meet its regulatory objective.
(a) Regulatory Need
    Rule 3240 generally prohibits registered persons from borrowing 
from or lending to their customers except when certain conditions are 
met, as specified in Rule 3240 and described above. Anecdotal evidence 
from member firms, law clinics, and previous enforcement cases--as well 
as FINRA's experience in examining and enforcing for compliance with 
Rule 3240--suggests that there is some ambiguity about the scope of 
Rule 3240 and certain risks to investors due to conflicts of interest 
and the superior information that registered persons have about 
potential risks and returns. As discussed further below, the proposed 
rule change would reduce ambiguity and aim to mitigate these risks.
(b) Economic Baseline
    The economic baseline for the proposed rule change is Rule 3240, 
members' existing internal procedures regarding borrowing from or 
lending to a customer, and the extent of investor protection and market 
efficiency that result. As of the end of 2022, there were 620,882 
registered persons and 3,378 registered member firms that would be 
covered by the proposed rule change, in addition to the registered 
persons' customers.\26\
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    \26\ See 2023 FINRA Industry Snapshot, https://www.finra.org/sites/default/files/2023-04/2023-industry-snapshot.pdf. There is no 
data of the number of customers of the registered member firms.
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    Absent Rule 3240, borrowing or lending arrangements between 
registered persons and their customers would likely be more widespread 
and riskier due to conflicts of interest and the superior information 
that registered persons have about potential risks and returns. Rule 
3240 generally prohibits these arrangements, and it establishes 
processes that may help mitigate the potential conflicts of interest in 
those arrangements that are within the exceptions. In this regard, 
registered persons may not enter into borrowing or lending arrangements 
that are within the rule's exceptions unless the registered person's 
member firm has written procedures allowing the borrowing or lending of 
money between such registered persons and their customers, and unless 
the registered person complies with any applicable notification and 
approval requirements. Members may adopt procedures that are stricter 
than Rule 3240. However, for purposes of conducting an economic 
analysis, FINRA does not have comprehensive information readily 
available about members' borrowing or lending policies or practices.
    To understand the potential harm from impermissible borrowing or 
lending arrangements, FINRA reviewed final FINRA enforcement cases that 
involved findings of Rule 3240 violations. Between January 2018 and 
December 2021, there were an average of 15 such enforcement cases per 
year, totaling 58 cases over the four-year period.\27\ The number of 
cases year over year did not display a noticeable trend. The customer 
was the borrower in only one of the cases, and the registered person 
was the borrower in the other 57 cases. The amounts of borrowed or lent 
money ranged from $1,800 to $1,350,000, with a mean of $163,509 and a 
median of $70,000.
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    \27\ The number of enforcement cases includes the FINRA 
disciplinary actions that resulted in a Letter of Acceptance, 
Waiver, and Consent (AWC), an Order Accepting Settlement (OAS), or a 
decision issued by FINRA's Office of Hearing Officers, and that 
resulted in findings that the respondent violated Rule 3240. The 
number does not include matters resulting in Cautionary Action.
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    Customer harm occurs if a loan from the customer is not repaid 
according to its terms,\28\ or if the terms of the loan are 
substantially worse when compared to prevailing market terms for loans 
to comparable borrowers. In the enforcement cases in the review period, 
the customers were often repaid, though it is uncertain whether they 
were repaid according to the terms of the loan or how those terms would 
have compared to prevailing market terms. FINRA notes the number of 
enforcement cases does not represent all violations of Rule 3240 that 
may have occurred, and thus, does not provide a complete picture of the 
economic baseline of customer harm.
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    \28\ ``Not repaid according to its terms'' could include, but is 
not limited to, situations in which a customer is not repaid in full 
or not repaid at the interest rate or by the date agreed upon.
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    FINRA also reviewed disclosures on Forms U4 and U5 of consumer-
initiated, investment-related arbitrations, civil litigation or 
customer complaints (written or oral) that included allegations related 
to a registered person (or former registered person) borrowing money 
from or lending money to a customer. This information complements the 
information from the enforcement cases regarding the potential harm 
caused by impermissible borrowing or lending arrangements, although the 
disclosures do not necessarily indicate whether or how Rule 3240 was 
violated. From 2018 to 2021, there was a total of 100 such disclosures 
over the four-year period, which averaged to 23 disclosures per year. 
The number of such disclosures declined from 38 in 2018 to 19 in 2021. 
In 28 of the total 100 identified disclosures, the amount of the 
compensatory damages claim was not

[[Page 3973]]

known.\29\ In the remaining 70 disclosures excluding two outliers,\30\ 
the alleged compensatory damages claims ranged from $1,800 to $3.7 
million, with a mean of $224,760 and a median of $94,600. Fifty-three 
of the 100 disclosures resulted in settlements, which ranged from 
$1,800 to $1.3 million. Five of the disclosures resulted in an 
arbitration award between $2,000 and $150,000. One disclosure resulted 
in a civil judgment of $85,000.
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    \29\ For example, in one disclosure, a family member filed the 
complaint on behalf of a deceased customer without knowing the exact 
amount borrowed.
    \30\ In two disclosures, the alleged compensatory damages were 
$20 million and $43 million, both of which are more than three 
standard deviations from the mean. FINRA removed these data points 
in calculating the mean and median to avoid biases caused by 
outliers.
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    The extent to which data concerning these consumer-initiated events 
may inform an economic baseline has some limitations. First, some 
disclosures allege harm caused by conduct in addition to borrowing from 
or lending to a customer, such as recommending unsuitable investments, 
so FINRA is unable to determine how much of the alleged harm derives 
from allegations related to borrowing or lending. Second, the alleged 
compensatory damages could be a poor proxy for measuring customer harm 
because the disclosures did not specifically mention the borrowed 
amounts or have details about whether the loan was repaid, and because 
nearly all alleged compensatory damages claims were not adjudicated. 
Nevertheless, to the extent some of the disclosures are of settlements, 
awards or judgments, those provide a better gauge of the potential 
customer harm than mere allegations of compensatory damages. Thus, the 
disclosure data provides a perspective, in addition to the enforcement 
data, on the prevalence and the scope of borrowing or lending 
arrangements between registered persons and customers.
    To supplement the quantitative analysis above, FINRA also 
considered its own experience with examining and enforcing for 
compliance with Rule 3240. Specifically, FINRA is concerned that some 
registered persons attempt to circumvent the current rule, using 
tactics such as timing a borrowing or lending arrangement to be entered 
into after terminating a broker-customer relationship, using other 
nominal borrowers such as a spouse or business entity of the registered 
person, or claiming a personal relationship that is not bona fide. For 
example, FINRA has detected instances in which the registered person 
re-assigned the customer to another registered person and then 
immediately entered into a borrowing arrangement with the former 
customer. These kinds of arrangements present the same kinds of 
conflicts of interest that Rule 3240 is intended to address, and, as 
such, also inform the economic baseline.
(c) Economic Impact
    By extending the coverage of the rule's general prohibition, 
narrowing some exceptions, and clarifying certain aspects of the rule, 
the proposed rule change would result in fewer attempts by registered 
persons to enter into impermissible arrangements. For example, the 
expected cost of attempting to enter into a borrowing or lending 
arrangement that is not within the exceptions would be higher, as the 
likelihood of getting caught would increase when members, registered 
persons and customers have better information about permitted 
arrangements. Further, by reducing ambiguity regarding permissible 
borrowing or lending arrangements, a registered person who currently 
avoids a permissible and mutually beneficial borrowing or lending 
arrangement may be more comfortable entering into such an arrangement 
because of the proposed rule change.
    The proposed rule change would prohibit some arrangements that are 
allowed under the current rule. For example, the general prohibition 
does not currently extend to arrangements entered into within six 
months after a broker-customer relationship ends; under the proposed 
rule change, it would. Additionally, the proposed rule change would 
narrow the personal relationship exception, prohibiting some of the 
arrangements that are permissible under the current rule. FINRA 
recognizes, however, that the proposed rule change may preclude 
arrangements that could be mutually beneficial to customers and 
registered persons and superior to alternative opportunities for 
borrowing or lending. Furthermore, requiring members to make a 
reasonable assessment of the risks and a reasonable determination of 
whether to approve the arrangement or new broker-customer relationship, 
as the case may be, may lead some members to disallow these 
arrangements altogether to avoid the cost of making the required 
assessments and determinations.
    The long-term net impact of the proposed rule change on members' 
compliance costs is less clear. The proposed rule change would likely 
reduce registered persons' attempts to borrow based on the close 
personal relationship exception. Further, with the proposed modernized 
definition of ``immediate family,'' some arrangements that are 
currently within the personal relationship exception would instead be 
within the immediate family exception, of which members could choose 
not to require notification or approval. On the other hand, by 
clarifying that the rule covers arrangements that pre-exist the 
initiation of a broker-customer relationship and extending the rule six 
months after a broker-customer relationship is terminated, members 
would start receiving notice of the kinds of arrangements of which they 
are not currently receiving notice and would be required to evaluate 
whether to approve the arrangement or a new broker-customer 
relationship, as applicable. Additionally, members may incur additional 
costs of supervising and monitoring due to the extended time period 
that the proposed rule change covers. The extent of net savings or 
costs to members for compliance would depend on the relative prevalence 
of such cases and the additional monitoring costs.
    The proposed rule change requiring members that receive notice of 
an arrangement to perform a reasonable assessment of the risks created 
by the arrangement could also raise members' compliance costs in the 
long term to the extent that members are not currently conducting these 
assessments. While the current rule requires members, upon receiving 
notice of an arrangement, to approve the arrangement in writing, the 
current rule does not require members to conduct a reasonable 
assessment of the risks of the arrangement prior to giving approval. 
Some members may already have a robust assessment process while some 
may have to adjust their process to comply with the proposed rule 
change. As a result, the compliance cost of the approval process for 
members that would have to make the adjustments could increase.
    Members may also incur increased compliance costs in the short 
term. Specifically, members may need to update their written procedures 
in light of the proposed rule change given that Rule 3240 prohibits all 
arrangements unless the member has procedures permitting them. Members 
may also have to re-train their staff to become aware of the extended 
prohibitions, the modernized definition of ``immediate family,'' the 
proposed factors to consider for arrangements based on close personal 
relationships and business relationships, and the ``reasonable 
assessment'' and ``reasonable determination'' requirements. While the 
proposed rule

[[Page 3974]]

change would not apply retroactively, as discussed below, members may 
elect to re-evaluate previously approved arrangements under the 
proposed rule change. Additionally, members may choose to respond to 
the proposed rule change by reviewing their current registered persons' 
borrowing or lending arrangements with their current and previous 
customers, to the extent they have not already done so.
    For members that are not already maintaining written notices and 
approvals of borrowing or lending arrangements that the proposed rule 
change would require, there would be additional operational costs. 
However, FINRA expects the incremental costs to be minimal, as the 
costs of making and keeping written records are trivial with digital 
technology.
(d) Alternatives Considered
    FINRA considered generally prohibiting all borrowing or lending 
arrangements between registered persons and customers and eliminating 
the existing exceptions. FINRA does not propose a complete prohibition 
for several reasons. As an initial matter, Rule 3240 already contains a 
general prohibition, and the proposed rule change would strengthen it, 
by clarifying that it applies to pre-existing arrangements, extending 
the time period over which the rule would apply, adopting supplementary 
material that addresses conduct by registered persons regarding 
arrangements with persons related to the registered person or to the 
customer, and narrowing some exceptions.
    Moreover, as discussed below, FINRA determined that the enumerated 
exceptions in Rule 3240, with the proposed rule change described above, 
are for limited situations where the likelihood that the registered 
person and customer entered into the borrowing or lending arrangement 
by virtue of the broker-customer relationship is reduced, and the 
potential risks are outweighed by the potential benefits of allowing 
registered persons to enter into arrangements with such customers. See 
discussion infra section C.

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

    The proposed rule change was published for comment in Notice 21-43. 
Six comments were received in response to Notice 21-43. A copy of 
Notice 21-43 appears in Exhibit 2a. Copies of the comment letters 
received in response to Notice 21-43 appear in Exhibit 2b. Of the six 
comment letters received, three were in favor of the proposed rule 
change,\31\ two were opposed,\32\ and one raised issues that were 
beyond the scope of Rule 3240.\33\
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    \31\ See Letter from Michael Edmiston, President, Public 
Investors Advocate Bar Association, to Jennifer Piorko Mitchell, 
Office of the Corporate Secretary, FINRA, dated February 14, 2022 
(``PIABA''); letter from Bernard V. Canepa, Managing Director and 
Associate General Counsel, Securities Industry and Financial Markets 
Association, to Jennifer Piorko Mitchell, Office of the Corporate 
Secretary, FINRA, dated February 14, 2022 (``SIFMA''); letter from 
Alice L. Stewart et al., Esquire, Director, University of Pittsburgh 
Securities Arbitration Clinic and Professor of Law, to Jennifer 
Piorko Mitchell, Office of the Corporate Secretary, FINRA, dated 
February 14, 2022 (``University of Pittsburgh'').
    \32\ See Letter from Jenice L. Malecki, Malecki Law, to Marcia 
E. Asquith, Executive Vice President, Board and External Relations, 
FINRA, dated February 14, 2022 (``Malecki''); letter from Melanie 
Senter Lubin, President, North American Securities Administrators 
Association, Inc., to Jennifer Piorko Mitchell, Office of the 
Corporate Secretary, FINRA, dated February 14, 2022 (``NASAA'').
    \33\ See Comment submission from Caleb Benore, dated December 
29, 2021 (``Benore'').
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    The comments and FINRA's responses are set forth in detail below.
General Support for the Proposal
    Three commenters expressed support for the proposal in Notice 21-
43.\34\ SIFMA noted that the proposal would provide greater clarity and 
guidance to members in assessing which arrangements may be permissible 
under the exceptions to the prohibition. PIABA specifically expressed 
support for applying Rule 3240 to arrangements that pre-exist the 
broker-customer relationship, extending the definition of customer to 
those who had accounts with a registered person in the previous six 
months, and making clear that the same or very similar conflicts of 
interest are present if a registered representative's close family 
member obtains a loan from a registered representative's customer. 
University of Pittsburgh expressed support for nearly every change 
proposed in Notice 21-43.\35\ PIABA, SIFMA and University of Pittsburgh 
all supported the proposed modernization of the ``immediate family'' 
definition.\36\
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    \34\ See PIABA, SIFMA and University of Pittsburgh.
    \35\ While generally supporting the proposal, University of 
Pittsburgh had comments regarding the business relationship 
exception, and PIABA had comments regarding the definition of 
``customer.'' Those comments are discussed below.
    \36\ NASAA, which generally opposed the proposal, also expressed 
support for the modernization of the definition of ``immediate 
family.''
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General Opposition to the Proposal
    NASAA and Malecki did not support the proposal in Notice 21-43 
because they both would favor an outright prohibition on borrowing from 
or lending to customers.\37\ NASAA stated that the proposed changes 
would continue to subject registered persons to disparate regulatory 
requirements. In particular, NASAA noted that its model rule concerning 
Dishonest or Unethical Business Practices of Broker-Dealers and Agents, 
which lists acts and practices that are considered contrary to high 
standards of commercial honor and just and equitable principles of 
trade, prohibits agents from ``[e]ngaging in the practice of lending or 
borrowing money or securities from a customer, or acting as a custodian 
for money, securities or an executed stock power of a customer.'' \38\
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    \37\ In the alternative, NASAA and Malecki recommended various 
changes to Rule 3240, should it continue to permit any kinds of 
borrowing or lending arrangements. Those comments are discussed 
below.
    \38\ See Dishonest or Unethical Business Practices of Broker-
Dealers and Agents (adopted May 23, 1983), https://www.nasaa.org/wp-content/uploads/2011/07/29-Dishonest_Practices_of_BD_or_Agent.83.pdf. NASAA also commented that 
its model rule concerning unethical business practices of investment 
advisers includes a similar prohibition. See NASAA Unethical 
Business Practices Of Investment Advisers, Investment Adviser 
Representatives, And Federal Covered Advisers Model Rule 102(a)(4)-1 
(2019), available at https://www.nasaa.org/wp-content/uploads/2019/05/NASAA-IA-Unethical-Business-Practices-Model-Rule.pdf (providing 
that an investment adviser, an investment adviser representative or 
a federal covered adviser shall not engage in unethical business 
practices, including, among other things, ``[b]orrowing money or 
securities from a client unless the client is a broker-dealer, an 
affiliate of the investment adviser, or a financial institution 
engaged in the business of loaning funds'' or ``[l]oaning money to a 
client unless the investment adviser is a financial institution 
engaged in the business of loaning funds or the client is an 
affiliate of the investment adviser'').
---------------------------------------------------------------------------

    During the retrospective review of Rule 3240, while some 
stakeholders also suggested that all borrowing and lending arrangements 
should be prohibited, others commented that the rule has appropriate 
exceptions or that the rule should have stronger controls short of a 
complete prohibition.\39\ In evaluating this wide range of views, FINRA 
considered, as stated in Notice 21-43, whether the rule should 
generally prohibit all borrowing and lending arrangements between 
registered persons and customers with no exceptions. FINRA decided 
against this approach, however, for several reasons.
---------------------------------------------------------------------------

    \39\ See Notice 21-43.
---------------------------------------------------------------------------

    First, Rule 3240 already contains a general prohibition that the 
proposed rule change would strengthen by extending the period over 
which the rule would apply, clarifying that the prohibition applies to 
pre-existing arrangements, and narrowing some of the exceptions. 
Second, FINRA believes

[[Page 3975]]

that all the exceptions are tailored to permit arrangements for which 
the potential benefits outweigh related potential risks. The exceptions 
allow for narrow situations where the likelihood that the registered 
person and customer entered into the borrowing or lending arrangement 
by virtue of the broker-customer relationship is reduced. Third, Rule 
3240 also contains several protections that restrict a registered 
person's ability to enter into an arrangement within the five 
exceptions (i.e., that no arrangements within the exceptions are 
permitted absent a member's procedures allowing the borrowing or 
lending of money between registered persons and customers and absent 
the registered person's compliance with applicable notice and approval 
requirements). These protections would be further strengthened through 
the proposed rule change to require members, when receiving written 
notice of a borrowing or lending arrangement, to make a reasonable 
assessment of the risks created by a borrowing or lending arrangement 
and a reasonable determination of whether to approve it.
    FINRA does not believe that NASAA's model rule concerning the 
unethical business practices of broker-dealers and agents warrants 
changing the general approach of Rule 3240 as a general prohibition 
with narrow exceptions and associated protections. As explained above, 
one of the paragraphs in the NASAA model rule prohibits broker-dealer 
agents from engaging in the practice of borrowing or lending money or 
securities from a customer. Although some states have adopted that 
paragraph of the NASAA model rule verbatim,\40\ some states have laws 
or regulations concerning borrowing or lending that are, in many 
respects, more similar to Rule 3240,\41\ or even incorporate Rule 3240 
by reference.\42\ Moreover, FINRA has not identified any broker-dealer 
laws or regulations concerning borrowing or lending arrangements in 
several states that have high concentrations of FINRA-registered 
broker-dealer firms and branches.\43\ Considering that Rule 3240 has a 
general prohibition on both borrowing arrangements and lending 
arrangements, limited tailored exceptions, and associated protections, 
including written-procedures requirements and notice-and-approval 
requirements, FINRA's rule--in its current form and as proposed--is as 
strong, if not stronger, than many states' laws.
---------------------------------------------------------------------------

    \40\ See, e.g., Georgia (Ga. Comp. R. & Regs. 590-4-
5-.16(2)(b)(1) (2011)); Massachusetts (950 Mass. Code Regs. 
12.204(1)(b)(1) (2020)); Pennsylvania (10 Pa. Code Sec.  
305.019(c)(2)(i) (2018)).
    \41\ See, e.g., Connecticut (Conn. Agencies Regs. Sec.  36b-31-
15b(a)(1) (1995)); Michigan (Mich. Admin. Code r.451.4.27(3)(a) 
(2019)); New Jersey (N.J. Admin. Code Sec.  13:47A-6.3(a)(43) and 
(44) (2017)); North Carolina (18 N.C. Admin. Code 6A.1414(c)(1) 
(1988)).
    \42\ See, e.g., Colorado (Colo. Code Regs. 704-1 Sec.  51-
4.7(H)(2) (2019)); Florida (Fla. Admin. Code Ann. r.69W-
600.013(2)(a) (2021)); Nevada (Nev. Admin. Code Sec.  
90.327(1)(d)(1) and Nev. Admin. Code Sec.  90.321(1) (2008)).
    \43\ Specifically, FINRA has not identified state broker-dealer 
laws or regulations prohibiting borrowing or lending with customers 
in New York, California, Illinois or Texas. See generally 2023 FINRA 
Industry Snapshot at 22-23, available at https://www.finra.org/sites/default/files/2023-04/2023-industry-snapshot.pdf.
---------------------------------------------------------------------------

    In addition, NASAA commented that all borrowing and lending 
arrangements should be prohibited because the conflicts of interest 
that such arrangements create cannot be mitigated by member firm 
policies and procedures. NASAA contended that its position is 
consistent with the Commission's approach regarding certain other 
broker-dealer conflicts of interest. In this regard, NASAA wrote that 
the Commission recognized in the context of Regulation Best Interest 
(``Reg BI'') that some conflicts are so pervasive that they cannot 
reasonably be mitigated and must be eliminated in their entirety. NASAA 
contended that the direct personal incentives inherent in borrowing and 
lending arrangements, and the desire to collect or the duty to pay a 
customer, are of equal if not greater concern.
    FINRA believes that the regulatory approach used in Rule 3240 is 
generally consistent with the approach the Commission took with Reg BI. 
Reg BI establishes a standard of conduct for broker-dealers and 
associated persons when they make a recommendation to a retail customer 
of any ``securities transaction or investment strategy involving 
securities.'' \44\ FINRA notes that Reg BI requires broker-dealers to 
address conflicts of interest associated with recommendations, 
including through mitigation, and in certain circumstances where the 
Commission determined that such conflicts cannot be reasonably 
mitigated, through elimination. Rule 3240 is generally consistent with 
the spirit of this regulatory approach. In this regard, Rule 3240 
generally prohibits most borrowing and lending arrangements and, thus, 
eliminates the potential conflicts these arrangements would present. 
Moreover, the proposed rule change would strengthen the general 
prohibition, by clarifying that it applies to arrangements that pre-
exist a broker-customer relationship, extending it to arrangements that 
arise within six months after a broker-customer relationship ends, and 
adding supplementary material concerning conduct by registered persons 
regarding arrangements with persons related to the registered person or 
to the customer. Furthermore, as discussed, the rule's tailored 
exceptions, which would be narrowed under the proposed rule change, are 
for situations where the potential benefits of the borrowing or lending 
arrangement--including the benefits of being able to enter into some 
arrangements without a notice and approval process--outweigh related 
potential risks. In addition, the rule has additional protections 
(i.e., the written-procedures requirement and the notice and approval 
requirements) that would be further enhanced by requiring firms to make 
a reasonable assessment of the risks and a reasonable determination of 
whether to approve the arrangement.\45\
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    \44\ See 17 CFR 240.15l-1(a)(1).
    \45\ Moreover, the member's reasonable assessment and 
determination would be informed by guidance in Notice 21-43 that the 
member's reasonable assessment of the risks may include 
consideration of, among other factors, ``any potential conflicts of 
interest in the registered person being in a borrowing or lending 
arrangement with a customer.''
---------------------------------------------------------------------------

    In addition, NASAA suggested that FINRA should clarify that members 
may impose more stringent controls up to and including a total 
prohibition of borrowing and lending arrangements. When FINRA proposed 
to adopt Rule 3240 as part of the consolidated FINRA rulebook, it 
indicated that members can choose to permit registered persons to 
borrow money from or lend money to their customers consistent with the 
requirements of the rule or may be more restrictive, including 
prohibiting borrowing or lending arrangements in whole or in part.\46\ 
In light of NASAA's suggestion, if the proposed rule change is 
approved, FINRA would reiterate this guidance in the Regulatory Notice 
announcing the approval of the proposed rule change.
---------------------------------------------------------------------------

    \46\ See Securities Exchange Act Release No. 61302 (January 6, 
2010), 75 FR 1672, 1673 (January 12, 2010) (Notice of Filing of File 
No. SR-FINRA-2009-095).
---------------------------------------------------------------------------

The Immediate Family Exception
    NASAA recommended eliminating the immediate family exception 
because elder financial exploitation is often perpetrated by family 
members. NASAA also contended that, if the current rule framework is 
maintained, notification and approval should be required for 
arrangements with immediate family members, particularly where the 
customer is a senior or may otherwise be a vulnerable adult under 
applicable

[[Page 3976]]

state law. Malecki also raised concerns regarding elder financial 
exploitation and noted that debt situations can easily cause serious 
friction within family and friends. Malecki commented that the 
immediate family exception is too broad, and that only a narrow 
exception for educational debt for children should be permitted when 
brokers manage their own children's accounts.
    Except for proposing to modify the definition of ``immediate 
family,'' FINRA does not propose to amend the existing immediate family 
exception or require notice and approval of arrangements with immediate 
family members. As explained above, the narrow exceptions to the rule--
including for arrangements with immediate family members--are for 
situations where FINRA believes the likelihood that the registered 
person has borrowed from or lent money to a customer by virtue of the 
broker-customer relationship is reduced, and the rule contains 
additional protections that restrict a registered person's ability to 
enter into an arrangement within the exceptions.
    FINRA believes that Malecki's suggestion to limit the immediate 
family exception to educational debt for children would narrow the 
exception too much. There are numerous other examples of beneficial 
borrowing or lending arrangements between immediate family members, 
including senior family members.\47\ Such loans may cover, for example, 
medical expenses, child care or elder care expenses, emergency home 
repair costs, or expenses in the wake of a job loss, or they may 
support a family member's small business at an interest rate lower than 
commercially available. Furthermore, FINRA continues to believe, as it 
did when it previously eliminated from the predecessor to Rule 3240 
notice and approval requirements for arrangements with immediate family 
members, that such requirements may invade the legitimate privacy 
interests of customers and registered persons.\48\ Thus, FINRA believes 
the potential risks are outweighed by the potential benefits of 
permitting immediate family members to privately borrow from and lend 
to each other.
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    \47\ FINRA notes that the statements in this section that apply 
to senior family members also apply to other family members who may 
be vulnerable adults.
    \48\ See Securities Exchange Act Release No. 49081 (January 14, 
2004), 69 FR 3410 (January 23, 2004) (Notice of Filing of File No. 
SR-NASD-2004-05) (explaining, among other things, that such 
requirements may invade the legitimate privacy interests of 
customers and registered persons).
---------------------------------------------------------------------------

    FINRA also reiterates that a registered person is prohibited from 
entering into a borrowing or lending arrangement with a customer who is 
an immediate family member, including one who is a senior investor, 
unless the member adopts written procedures permitting such 
arrangements. As explained above, members may choose to prohibit all 
borrowing and lending arrangements, allow only some of the exceptions 
enumerated in Rule 3240(a)(2), or impose limitations on the exceptions. 
FINRA believes that, by strengthening the general prohibition and 
narrowing its exceptions, the proposed rule change would further 
protect all investors, including senior investors.\49\
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    \49\ FINRA has maintained a longstanding commitment to 
protecting senior investors and continues to work to address risks 
facing this investor population as part of its regulatory mission, 
including by adopting rules that are intended to address risks 
related to possible financial exploitation of senior investors. See, 
e.g., FINRA, Protecting Senior Investors 2015-2020 (April 30, 2020); 
Regulatory Notice 20-34; Rule 2165 (Financial Exploitation of 
Specified Adults); Rule 4512.06 (Trusted Contact Person). FINRA 
further notes that Rule 2010 (Standards of Commercial Honor and 
Principles of Trade)--which provides that a member, in the conduct 
of its business, shall observe high standards of commercial honor 
and just and equitable principles of trade--protects investors from 
unethical behavior and is broad enough to cover a wide range of 
unethical conduct.
---------------------------------------------------------------------------

The Personal Relationship and Business Relationship Exceptions
    Several commenters addressed the personal relationship and business 
relationship exceptions. Malecki commented that these two exceptions 
are too broad. Likewise, University of Pittsburgh requested that Rule 
3240 limit the business relationship exception to the financial 
industry and noted that a registered person getting regular haircuts 
from a hairstylist should not fit within the business relationship 
exception. University of Pittsburgh also requested that FINRA provide 
examples of qualifying business relationships and more information 
about whether a business relationship qualifies for the exception. On 
this last point, University of Pittsburgh suggested that useful factors 
may include (1) the financial risks for the parties; (2) the industry 
involved; and (3) any other factor that may help determine the trust 
established between the parties and the comparative risks of their past 
business practices and their potential borrower-lender agreements.
    FINRA shares some of these concerns and accordingly has proposed to 
narrow the personal relationship exception and to provide factors that 
are relevant to assessing whether a relationship falls within the scope 
of either exception. Beyond what FINRA proposed in Notice 21-43--and in 
response to the comments--FINRA proposes additional amendments to 
expressly provide that the personal and business relationships must be 
``bona fide'' \50\ and provide that an illustrative example of a 
``business relationship'' is a loan from a registered person to a small 
outside business that the registered person co-owned for years for the 
sole purpose of providing the business with additional operating 
capital.\51\
---------------------------------------------------------------------------

    \50\ See proposed Rule 3240(a)(2)(D) and (E).
    \51\ See proposed Rule 3240.04. FINRA agrees that a loan from a 
customer from whom the registered person purchases non-commercial 
consumer goods or services, such as hair styling services, would not 
fit within the business relationship exception.
---------------------------------------------------------------------------

    FINRA does not believe, however, that additional changes to the 
personal and business relationship exceptions are warranted. The 
personal relationship exception, as proposed to be amended, would not 
permit ``virtually anyone'' to enter into a borrowing or lending 
arrangement.\52\ Rather, the proposed rule change would narrow the 
personal relationship exception significantly, to apply only to 
personal relationships that are ``bona fide'' and ``close,'' and 
maintained outside of, and formed prior to, the broker-customer 
relationship. This narrower definition would reduce the risk that a 
registered person would concoct a personal relationship with a customer 
for the purpose of entering into a borrowing or lending arrangement 
with that customer, and it would address concerns expressed during the 
retrospective rule review that the exception can be exploited.
---------------------------------------------------------------------------

    \52\ See Malecki.
---------------------------------------------------------------------------

    Likewise, FINRA believes that the business relationship exception, 
as proposed to be amended, is appropriately tailored. Rule 3240 
currently requires that the qualifying business relationships be 
``outside of the broker-customer relationship.'' This language serves 
to separate the business relationship from the broker-customer 
relationship, and thus mitigate the potential conflict of interest. The 
proposed rule change would further narrow this exception by requiring 
that the business relationship be ``bona fide.'' FINRA does not believe 
that the ``business relationship'' exception should be further limited 
to only the financial industry. There is no indication that the risks 
related to arrangements based on a bona fide business relationship turn 
on the industry or sector involved.
    With respect to University of Pittsburgh's suggested factors, FINRA 
notes that the proposed rule change would require members, when 
receiving written notice under Rule 3240, to

[[Page 3977]]

perform a reasonable assessment of the risks created and make a 
reasonable determination of whether to approve the arrangement or 
broker-customer arrangement, as the case may be. As explained above, a 
member's reasonable assessment and determination would be informed by 
the guidance already provided in Notice 21-43, which includes a non-
exhaustive list of factors to consider when evaluating whether to 
approve a borrowing or lending arrangement. For example, these factors 
include, among others, any potential conflicts of interest, the length 
and type of relationship, the material terms of the arrangement, and 
the customer's or registered person's ability to repay the loan. These 
factors are broad enough to cover many of the kinds of specific 
considerations suggested by University of Pittsburgh, including its 
suggestion that members consider the industry that the loan involves.
Definition of ``Customer''
    Under the proposed rule change, the rule's prohibition would extend 
to arrangements with any customer who, within the previous six months, 
had a securities account assigned to the registered person at any 
member firm.\53\ NASAA suggests that the period of time used in 
proposed Rule 3240.02 should be one year, instead of six months, 
because Rule 4111 (Restricted Firm Obligations) uses a one-year 
lookback period.\54\
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    \53\ See proposed Rule 3240.02.
    \54\ PIABA also suggests that the period of time used in 
proposed Rule 3240.02 should be one year or more, instead of six 
months, and cites the time it could take to ``unwind some position a 
registered representative might recommend.'' It is unclear, however, 
what kinds of positions this comment pertains to or what would need 
to be unwound.
---------------------------------------------------------------------------

    The Rule 4111 lookback periods (including, among others, the one-
year lookback period that pertains to ``Registered Persons In-Scope'' 
\55\) impact how Rule 4111 identifies firms with a significant history 
of misconduct. FINRA, however, has proposed a six-month period of time 
to align proposed Rule 3240.02 with the six-month period in the 
definition of ``customer'' in Rule 3241, because Rule 3241 addresses 
similar potential conflicts of interest as Rule 3240.\56\ Moreover, 
FINRA believes the six-month lookback period in proposed Rule 3240.02 
strikes an appropriate balance between achieving the regulatory 
objective of addressing circumvention of the proposed rule change and 
imposing requirements that are reasonable and appropriate, including 
reasonable requirements on members in tracking transfers of customers' 
accounts.\57\
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    \55\ See Rule 4111(i)(13).
    \56\ Like Rule 3240, Rule 3241 addresses situations that may 
create potential conflicts of interest between registered persons 
and their customers. Specifically, Rule 3241 addresses the potential 
conflicts that registered persons may face when they are named a 
customer's beneficiary, executor or trustee, or hold a power of 
attorney or similar position for or on behalf of a customer. It 
limits any registered person from being named a beneficiary, 
executor or trustee, or to have a power of attorney or similar 
position of trust for or on behalf of a customer, and protects 
investors by requiring members to affirmatively address registered 
persons being named beneficiaries or holding positions of trusts for 
customers. See Regulatory Notice 20-38 (Oct. 29, 2020).
    \57\ Prior to the adoption of Rule 3241, many members 
``prohibit[ed] or impos[ed] limitations on being named as a 
beneficiary or to a position of trust when there is not a familial 
relationship,'' but FINRA ``observed situations where registered 
representatives tried to circumvent firm policies, such as resigning 
as a customer's registered representative [and] transferring the 
customer to another registered representative.'' See Regulatory 
Notice 20-38. ``To address attempted circumvention of the 
restrictions (e.g., by closing or transferring a customer's 
account),'' FINRA defined ``customer'' in Rule 3241 to include ``any 
customer that has, or in the previous six months had, a securities 
account assigned to the registered person at any member firm.'' Id.; 
Rule 3241.01. When proposing Rule 3241, FINRA explained that the 
inclusion of the six-month look-back period ``is important in 
addressing potential conflicts of interest and circumvention of the 
proposed rule change.'' See Securities Exchange Act Release No. 
89218 (July 2, 2020), 85 FR 41249, 41256 (July 9, 2020) (Notice of 
Filing of File No. SR-FINRA-2020-20). FINRA further explained, in 
response to a comment suggesting that the proposed definition of 
``customer'' include a 12-month lookback provision, that it 
``believes the six-month period strikes an appropriate balance 
between achieving the regulatory objective of addressing 
circumvention of the proposed rule change by transferring the 
customer account to another representative and imposing reasonable 
requirements on member firms in tracking account transfers.'' Id.
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Supervision and Customer-Disclosure Requirements
    NASAA suggested that members should be required to incorporate 
specific supervisory procedures for assessing, and after approving, a 
borrowing or lending arrangement. Specifically, NASAA commented that 
the member should be required to document (1) the steps it undertook to 
assess the risk prior to approving the arrangement; (2) the steps it 
will take to minimize the conflict of interest; (3) how it communicated 
to the customer the risk created by the lending arrangement or 
repayment terms so that the customer appreciates the risk; and (4) an 
outline of the supervisory measures that it will take. Regarding the 
member's assessment of a borrowing or lending arrangement, NASAA 
contended that the rule should require members to evaluate borrowing 
and lending arrangements, and that the member's assessment should 
include an interview (preferably by a compliance officer) with the 
customer outside of the presence of the registered person or, where 
that is not possible, other verification that the customer benefits 
from and entered into the arrangement on his or her own volition and 
without pressure. Regarding supervision after approving an arrangement, 
NASAA commented that members should closely monitor the account of a 
customer who is a party to a borrowing or lending arrangement and 
impose formal conditions, apply heightened scrutiny to these accounts 
on an ongoing, annual review basis, place the registered person on 
heightened supervision, and conduct additional reviews on trades and 
transactions to ensure that recommendations are suitable. Similarly, 
Malecki commented that all loans except for educational debt for 
children should be supervised, and that ``supervision of loans'' should 
be aligned with FINRA rules regarding outside business activities and 
private securities transactions.\58\
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    \58\ See Rules 3270 (Outside Business Activities of Registered 
Persons) and 3280 (Private Securities Transactions of an Associated 
Person).
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    The fundamental approach of FINRA's supervision rule is to require 
members to establish and maintain a system to supervise the activities 
of each associated person that is ``reasonably designed'' to achieve 
compliance with applicable securities laws and regulations, and with 
applicable FINRA rules.\59\ Likewise, the written supervisory 
procedures required by FINRA's supervision rule must be ``reasonably 
designed'' to achieve compliance with applicable securities laws and 
regulations, and with applicable FINRA rules.\60\ In guidance, FINRA 
has previously explained that written supervisory procedures should 
include a description of the controls and procedures used by members to 
deter and detect misconduct and improper activity.\61\ Additionally, at 
a minimum, written supervisory procedures should include and describe 
(1) the specific identification of the individual(s) responsible for 
supervision; (2) the supervisory steps and reviews to be taken by the 
appropriate supervisor; (3) the frequency of such reviews; and (4) how 
such reviews shall be documented.\62\ FINRA does not believe

[[Page 3978]]

it is necessary or appropriate to further prescribe specific 
supervisory procedures that members should use when supervising for 
compliance with Rule 3240.
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    \59\ See Rule 3110(a); see also NASD Notice to Members 99-45 
(June 1999).
    \60\ See Rule 3110(a)(1) and (b)(1).
    \61\ See NASD Notice to Members 98-96 (December 1998); see also 
NASD Notice to Members 99-45, supra note 59.
    \62\ See NASD Notice to Members 98-96, supra note 61; see also 
NASD Notice to Members 99-45, supra note 59.
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    In response to the comments, however, FINRA is proposing stronger 
controls for when a member considers whether to approve a borrowing or 
lending arrangement or, where there is a pre-existing borrowing or 
lending arrangement, a new broker-customer relationship--specifically, 
the proposed requirement that a member, upon receiving written notice 
under Rule 3240, perform a ``reasonable assessment'' of the risks and a 
``reasonable determination'' of whether to approve the arrangement or 
new broker-customer relationship, as the case may be.\63\ As explained 
above, FINRA intends that a member's reasonable assessment and 
reasonable determination would be informed by the guidance that FINRA 
provided in Notice 21-43 concerning the factors members may consider 
when assessing whether to approve a borrowing or lending arrangement. 
FINRA believes this guidance would help members, when performing the 
reasonable assessments and determinations required under the proposed 
rule change, evaluate the key risks and conflicts and afford 
appropriate flexibility in evaluating which factors may apply to a 
particular situation.\64\
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    \63\ See proposed Rule 3240.06.
    \64\ With respect to Malecki's comment that ``supervision of 
loans'' should be aligned with FINRA rules regarding outside 
business activities and private securities transactions, FINRA notes 
that Rule 3270 does not require members to ``supervise'' outside 
business activities. However, if a loan constitutes a private 
securities transaction, then Rule 3280--and any applicable 
supervisory obligations--would apply. See Rule 3280(c)(2) 
(discussing supervisory requirements involving private securities 
transactions for compensation); 3280(d) (discussing private 
securities transactions not for compensation, where a member may 
``at its discretion'' require the person to adhere to specified 
conditions); 3280(e)(1) (defining ``private securities transaction'' 
and several exclusions to that definition).
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    In a related comment, NASAA suggested that FINRA should require 
registered persons, at a minimum, to disclose to customers the factors 
listed in the guidance provided in Notice 21-43. Although NASAA refers 
to those factors as ``the Proposal's recommended disclosures,'' the 
factors in Notice 21-43 are intended to help guide a member's 
assessment of whether to approve a loan; they were not designed or 
intended to be the basis of customer disclosures about a loan. 
Nevertheless, FINRA notes that that guidance states that FINRA expects 
a member, if possible and as part of the member's evaluation of whether 
to approve a borrowing or lending arrangement, to try to discuss the 
arrangement with the customer.
Retroactivity
    NASAA commented that applying the proposed rule change 
retroactively could provide benefits to investors and recommended 
retroactive disclosure of pre-existing borrowing and lending 
arrangements.\65\ FINRA seeks, however, to avoid creating situations 
that would require registered persons and customers to terminate 
borrowing or lending arrangements or broker-customer relationships 
that, when entered into, were permissible under the current version of 
Rule 3240. In general, the proposed rule change would not apply 
retroactively to borrowing or lending arrangements that were entered 
into prior to the effective date of the proposed rule change and were 
permissible under the current version of Rule 3240.\66\ Rather, the 
proposed rule change would apply only to (1) new arrangements and new 
broker-customer relationships that occur after the effective date of 
the proposed rule change; and (2) modifications that occur after the 
effective date of the proposed rule change of borrowing or lending 
arrangements that were entered into before the effective date.\67\ 
Although FINRA is not proposing to require members to re-evaluate 
previously approved arrangements, members would have the discretion to 
do so.\68\
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    \65\ FINRA assumes that NASAA's comment about ``pre-existing'' 
arrangements concerns arrangements that were entered into before the 
effective date of the proposed rule change.
    \66\ For example, the proposed rule change to narrow the 
personal relationship exception would not apply retroactively to a 
borrowing or lending arrangement that was entered into prior to the 
effective date of the proposed rule change and that was permissible 
under the current personal relationship exception.
    \67\ FINRA reiterates, however, that the current rule's general 
prohibition against borrowing and lending arrangements between 
registered persons and customers already applies to arrangements 
that pre-existed the formation of the broker-customer relationship, 
and that the proposed rule change would clarify that scope.
    \68\ FINRA also notes that FINRA's supervision rule would 
require a member to follow-up on ``red flags'' indicating 
problematic activity related to borrowing or lending arrangements 
between registered persons and their customers, including 
arrangements that were entered into prior to the effective date of 
the proposed amendments. See Securities Exchange Act Release No. 
89218 (July 2, 2020), 85 FR 41249, 41251 (July 9, 2020) (Notice of 
Filing of File No. SR-FINRA-2020-20) (explaining that Rule 3110 
(Supervision) includes the ``longstanding obligation to follow-up on 
`red flags' indicating problematic activity'').
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Harmonization of Regulatory Approaches to Financial Professionals' 
Borrowing and Lending Arrangements
    In Notice 21-43, FINRA described some similarities and differences 
between Rule 3240 and the federal and state regulatory approaches for 
investment advisers and their supervised persons. FINRA sought to 
encourage and inform a broader dialogue about whether the similar risks 
presented when any financial professional borrows from or lends money 
to customers warrants a more uniform approach to regulating this 
activity. SIFMA commented that it welcomes a discussion on harmonizing 
the regulatory approaches, where appropriate.

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-FINRA-2024-001 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-2024-001. 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

[[Page 3979]]

post all comments on the Commission's internet website (https://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 a.m. and 3 p.m. Copies of such 
filing also will be available for inspection and copying at the 
principal office of FINRA. Do not include personal identifiable 
information in submissions; you should submit only information that you 
wish to make available publicly. We may redact in part or withhold 
entirely from publication submitted material that is obscene or subject 
to copyright protection.
    All submissions should refer to file number SR-FINRA-2024-001 and 
should be submitted on or before February 12, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\69\
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    \69\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-01068 Filed 1-19-24; 8:45 am]
BILLING CODE 8011-01-P