Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Proposed Rule Change To Adopt FINRA Rule 2150 (Improper Use of Customers' Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts) in the Consolidated FINRA Rulebook, 30198-30201 [E9-14802]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Notices]
[Pages 30198-30201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14802]



[[Page 30198]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60135; File No. SR-FINRA-2009-014]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Proposed Rule Change To Adopt 
FINRA Rule 2150 (Improper Use of Customers' Securities or Funds; 
Prohibition Against Guarantees and Sharing in Accounts) in the 
Consolidated FINRA Rulebook

June 18, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``SEA'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that on March 24, 2009, Financial Industry Regulatory Authority, 
Inc. (``FINRA'') (f/k/a National Association of Securities Dealers, 
Inc. (``NASD'')) 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 substantially 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 adopt certain paragraphs, as specified below, 
of NASD Rule 2330 (Customers' Securities or Funds) as FINRA Rule 2150 
(Improper Use of Customers' Securities or Funds; Prohibition Against 
Guarantees and Sharing in Accounts) in the consolidated FINRA rulebook 
taking into account certain provisions of Incorporated NYSE Rule 352 
(Guarantees, Sharing in Accounts, and Loan Arrangements) \3\ and to 
delete NYSE Rule 352, with the exception of NYSE Rules 352(e) 
(Limitations on Borrowing From or Lending to Customers), 352(f) (Loan 
Procedures) and 352(g).
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    \3\ For convenience, Incorporated NYSE Rule 352 is hereinafter 
referred to as ``NYSE Rule 352.''
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    The proposed rule change would renumber NASD Rule 2330(a) (Improper 
Use) as FINRA Rule 2150(a) (Improper Use), NASD Rule 2330(e) 
(Prohibition Against Guarantees) as FINRA Rule 2150(b) (Prohibition 
Against Guarantees) and NASD Rule 2330(f) (Sharing in Accounts; Extent 
Permissible) as FINRA Rule 2150(c) (Sharing in Accounts; Extent 
Permissible) in the consolidated FINRA rulebook. The proposed rule 
change also would add a ``Supplementary Material'' section to proposed 
FINRA Rule 2150 that contains certain clarifications and codifications 
of existing staff guidance. The text of the proposed rule change is set 
forth below. Proposed new language is italicized; proposed deletions 
are in brackets.
* * * * *

Text of Proposed New FINRA Rule (NASD Rules 2330(a), 2330(e) and 
2330(f) and Incorporated NYSE Rules 352(a), 352(b), 352(c) and 352(d) 
To Be Deleted in Their Entirety From the Transitional Rulebook)

* * * * *

2000. DUTIES AND CONFLICTS

* * * * *

2100. TRANSACTIONS WITH CUSTOMERS

* * * * *

2150. Improper Use of Customers' Securities or Funds; Prohibition 
Against Guarantees and Sharing in Accounts

(a) Improper Use

    No member or person associated with a member shall make improper 
use of a customer's securities or funds.

(b) Prohibition Against Guarantees

    No member or person associated with a member shall guarantee a 
customer against loss in connection with any securities transaction or 
in any securities account of such customer.

(c) Sharing in Accounts; Extent Permissible

    (1)(A) Except as provided in paragraph (c)(2), no member or person 
associated with a member shall share directly or indirectly in the 
profits or losses in any account of a customer carried by the member or 
any other member; provided, however, that a member or person associated 
with a member may share in the profits or losses in such an account if:
    (i) Such person associated with a member obtains prior written 
authorization from the member employing the associated person;
    (ii) Such member or person associated with a member obtains prior 
written authorization from the customer; and
    (iii) Such member or person associated with a member shares in the 
profits or losses in any account of such customer only in direct 
proportion to the financial contributions made to such account by 
either the member or person associated with a member.
    (B) Exempt from the direct proportionate share limitation of 
paragraph (c)(1)(A)(iii) are accounts of the immediate family of such 
member or person associated with a member. For purposes of this Rule, 
the term ``immediate family'' shall include parents, mother-in-law or 
father-in-law, husband or wife, children or any relative to whose 
support the member or person associated with a member otherwise 
contributes directly or indirectly.
    (2) Notwithstanding the prohibition of paragraph (c)(1), a member 
or person associated with a member that is acting as an investment 
adviser may receive compensation based on a share in profits or gains 
in an account if:
    (A) Such person associated with a member seeking such compensation 
obtains prior written authorization from the member employing the 
associated person;
    (B) Such member or person associated with a member seeking such 
compensation obtains prior written authorization from the customer; and
    (C) All of the conditions in Rule 205-3 of the Investment Advisers 
Act (as the same may be amended from time to time) are satisfied.

Supplementary Material

    .01 Inapplicability of Rule to Certain Guarantees. For purposes of 
paragraph (b) of this Rule, a ``guarantee'' that is extended to all 
holders of a particular security by an issuer as part of that security 
generally would not be subject to the prohibition against guarantees.
    .02 Permissible Reimbursement by Member of Certain Losses. Nothing 
in this Rule shall preclude a member, but not an associated person of 
the member, from determining on an after-the-fact basis, to reimburse a 
customer for transaction losses; provided, however, that the member 
shall comply with all reporting requirements that may be applicable to 
such payment. For example, if the payment can reasonably be construed 
as a settlement, the member shall report the payment as a settlement 
under the applicable reporting requirement(s). In addition, nothing in 
this Rule shall preclude a member, but not an associated person of the 
member, from correcting a bona fide error. This Supplementary Material 
.02 does not apply to an associated person of a member because of the 
concern that any such payment may conceal individual misconduct.
    .03 Record Retention. For purposes of paragraph (c) of this Rule, 
members shall preserve the required written authorization(s) for at 
least six years after the date the account is closed.
    .04 Applicability of Other Rules to Sharing Arrangements. Members 
and

[[Page 30199]]

associated persons should be aware that participation in a sharing 
arrangement permitted under paragraph (c) of this Rule does not affect 
the applicability of other FINRA rules, including paragraph (b) of this 
Rule and NASD Rules 3030, 3040 and 3050, to such sharing arrangement.
* * * * *

Text of NASD Rules and Incorporated NYSE Rules To Remain in the 
Transitional Rulebook

* * * * *

NASD Rules

* * * * *

2330. Customers' Securities or Funds

    (a) Reserved. [Improper Use]
    [No member or person associated with a member shall make improper 
use of a customer's securities or funds.]
    (b) No Change.
    (c) No Change.
    (d) No Change.
    (e) Reserved. [Prohibition Against Guarantees]
    [No member or person associated with a member shall guarantee a 
customer against loss in connection with any securities transaction or 
in any securities account of such customer.]
    (f) Reserved. [Sharing in Accounts; Extent Permissible]
    [(1)(A) Except as provided in paragraph (f)(2) no member or person 
associated with a member shall share directly or indirectly in the 
profits or losses in any account of a customer carried by the member or 
any other member; provided, however, that a member or person associated 
with a member may share in the profits or losses in such an account if 
(i) such person associated with a member obtains prior written 
authorization from the member employing the associated person; (ii) 
such member or person associated with a member obtains prior written 
authorization from the customer; and (iii) such member or person 
associated with a member shares in the profits or losses in any account 
of such customer only in direct proportion to the financial 
contributions made to such account by either the member or person 
associated with a member.]
    [(B) Exempt from the direct proportionate share limitation of 
paragraph (f)(1)(A)(iii) are accounts of the immediate family of such 
member or person associated with a member. For purposes of this Rule, 
the term ``immediate family'' shall include parents, mother-in-law or 
father-in-law, husband or wife, children or any relative to whose 
support the member or person associated with a member otherwise 
contributes directly or indirectly.]
    [(2) Notwithstanding the prohibition of paragraph (f)(1), a member 
or person associated with a member that is acting as an investment 
adviser (whether or not registered as such) may receive compensation 
based on a share in profits or gains in an account if (i) such person 
associated with a member seeking such compensation obtains prior 
written authorization from the member employing the associated person; 
(ii) such member or person associated with a member seeking such 
compensation obtains prior written authorization from the customer; and 
(iii) all of the conditions in Rule 205-3 of the Investment Advisers 
Act of 1940 (as the same may be amended from time to time) are 
satisfied.]
* * * * *

Incorporated NYSE Rules

* * * * *

Rule 352. Guarantees, Sharing in Accounts, and Loan Arrangements

[Prohibitions Against Guarantees]

    (a) Reserved. [No member organization shall guarantee or in any way 
represent that it will guarantee any customer against loss in any 
account or on any transaction; and no member, principal executive, 
registered representative or officer shall guarantee or in any way 
represent that either he or she, or his or her employer, will guarantee 
any customer against loss in any customer account or on any customer 
transaction. The prohibitions in this paragraph extend to the payment, 
in whole or in part, of a debit balance.]

[Prohibition Against Sharing in Profits and Losses]

    (b) Reserved. [Except as otherwise provided by this Rule, no 
member, member organization, principal executive, officer, or any other 
person acting in the capacity of a registered representative shall, 
directly or indirectly, (i) take or receive or agree to take or receive 
a share in the profits, or (ii) share or agree to share in any losses, 
in any customer's account or of any transaction effected therein.]

[Joint Accounts and Order Errors]

    (c) Reserved. [Subject to compliance with paragraph (a), paragraph 
(b) of this Rule shall not preclude a member not associated with a 
member organization, or a member organization or, with the prior 
written authorization of the member organization, a member associated 
with such member organization, a principal executive or other person 
acting in the capacity of a registered representative, from 
participating with a customer in a joint account and sharing in the 
profits or losses therein in direct proportion to financial 
contributions made to such account. Accounts of immediate family 
members of such persons are exempt from the direct proportionate share 
limitation. (See Rule 93 for reporting and approval requirements 
concerning participation in joint accounts by members and member 
organizations.) Nor shall it preclude a member not associated with a 
member organization or a member organization from sharing or agreeing 
to share any losses in a customer account if it has been established 
that the loss was caused in whole or in part by an error resulting from 
the action or inaction of such member, member organization, or person 
associated therewith (See also Rule 134).]
    [For purposes of this section (c), the term ``immediate family'' 
shall include parents, mother-in-law or father-in-law, husband or wife, 
children or any relative to whose support the principal executive or 
persons acting in the capacity of a registered representative otherwise 
contributes directly or indirectly.]

[Certain Investment Advisory Arrangements]

    (d) Reserved. [Notwithstanding the prohibition of paragraph (b), a 
person acting as an investment adviser (whether or not registered as 
such) may receive compensation based on a share of profits or gains in 
an account if all the of the conditions in Rule 205-3 of the Investment 
Advisers act of 1940 (as may be amended from time to time) are 
satisfied. All advisory compensation arrangements should be reviewed by 
member organizations and their counsel in light of applicable State and 
Federal law (e.g., ERISA).]

Limitations on Borrowing From or Lending to Customers

    (e) No Change.

Loan Procedures

    (f) No Change.
    (g) No Change.
* * * * *

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

[[Page 30200]]

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

    As part of the process of developing a new consolidated rulebook 
(the ``Consolidated FINRA Rulebook''),\4\ FINRA is proposing to adopt 
NASD Rules 2330(a), 2330(e) and 2330(f) as FINRA Rules 2150(a), 2150(b) 
and 2150(c), respectively, in the Consolidated FINRA Rulebook, with 
certain changes as described below.\5\ Proposed FINRA Rule 2150 also 
would take into account certain provisions of NYSe Rule 352. In 
addition, proposed FINRA Rule 2150 includes a ``Supplementary 
Material'' section that contains certain clarifications and 
codifications of existing staff guidance. The proposed rule change 
would delete NYSe Rule 352 (with the exception of paragraphs (e), (f) 
and (g)) \6\ from the Transitional Rulebook.
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    \4\ The current FINRA rulebook consists of (1) FINRA Rules; (2) 
NASD Rules; and (3) rules incorporated from NYSE (``Incorporated 
NYSE Rules'') (together, the NASD Rules and Incorporated NYSE Rules 
are referred to as the ``Transitional Rulebook''). While the NASD 
Rules generally apply to all FINRA members, the Incorporated NYSE 
Rules apply only to those members of FINRA that are also members of 
the NYSE (``Dual Members''). The FINRA Rules apply to all FINRA 
members, unless such rules have a more limited application by their 
terms. For more information about the rulebook consolidation 
process, see FINRA Information Notice, March 12, 2008 (Rulebook 
Consolidation Process).
    \5\ NASD Rules 2330(b) (General Provisions), 2330(c) 
(Authorization to Lend), 2330(d) (Segregation and Identification of 
Securities) and Interpretive Material 2330 (Segregation of 
Customers' Securities) set forth certain financial and operational 
requirements. These provisions would remain in the Transitional 
Rulebook to be addressed as part of a later phase of the rulebook 
consolidation process.
    \6\ NYSE Rules 352(e), 352(f) and 352(g) govern borrowing from 
or lending to customers. These provisions generally are equivalent 
to the provisions of NASD Rule 2370 (Borrowing From or Lending to 
Customers). NASD Rule 2370 and the corresponding NYSE provisions 
would remain in the Transitional Rulebook to be addressed as part of 
a later phase of the rulebook consolidation process.
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Proposed Amendments

    FINRA is proposing the following amendments.

a. Improper Use of Customers' Securities or Funds (proposed FINRA Rule 
2150(a))

    NASD Rule 2330(a) prohibits members and associated persons from 
making improper use of a customer's securities or funds. The improper 
use of customer securities or funds threatens the fundamental 
relationship between a broker and a customer and undermines the 
integrity of the securities industry. NASD Rule 2330(a) has proven 
effective through nearly 70 years of regulatory experience. There is no 
Incorporated NYSE Rule equivalent to NASD Rule 2330(a). FINRA is 
proposing to adopt NASD Rule 2330(a) as FINRA Rule 2150(a) in the 
Consolidated FINRA Rulebook without changes.

b. Prohibition Against Guarantees (proposed FINRA Rule 2150(b))

    NASD Rule 2330(e) prohibits members and their associated persons 
from guaranteeing a customer against loss in connection with any 
securities transaction or in any securities account of the customer. 
The reason for the prohibition is that such guarantees create the 
expectation that the customer is insulated from market risk intrinsic 
in securities ownership and may induce the customer to engage in a 
securities transaction that is not otherwise appropriate for the 
customer.
    FINRA is proposing to adopt NASD Rule 2330(e) as FINRA Rule 2150(b) 
in the Consolidated FINRA Rulebook without changes. FINRA is proposing 
to delete NYSE Rule 352(a) (Prohibitions Against Guarantees) because 
its provisions are substantially similar to proposed FINRA Rule 
2150(b).

c. Sharing in Accounts (proposed FINRA Rule 2150(c))

    NASD Rule 2330(f) prohibits members and associated persons from 
sharing in the profits or losses in a customer's account except under 
certain limited conditions. NASD Rule 2330(f)(1) permits a member or 
associated person to share in the profits or losses in a customer's 
account if: (1) The associated person obtains the prior written 
authorization of his or her employing member; (2) the member or 
associated person obtains the prior written authorization of the 
customer; and (3) the member or associated person shares in the profits 
or losses in the account only in direct proportion to the member's or 
associated person's financial contributions to the account. The rule 
exempts from the proportionality requirement accounts of the immediate 
family of the member or associated person. NASD Rule 2330(f)(2) permits 
a member or associated person that is acting as an investment adviser, 
whether or not registered as such under the Investment Advisers Act of 
1940 (``Advisers Act''), to receive compensation based on a share in 
the profits or gains in a customer's account if: (1) The associated 
person obtains the prior written authorization of his or her employing 
member; (2) the member or associated person obtains the prior written 
authorization of the customer; and (3) all of the conditions specified 
in Rule 205-3 of the Advisers Act are satisfied.
    Similar to NASD Rule 2330(f)(1), NYSE Rules 352(b) (Prohibition 
Against Sharing in Profits and Losses) and 352(c) (Joint Accounts and 
Order Errors) provide that sharing profits or losses in a joint account 
with a customer is permitted if it is in direct proportion to financial 
contributions made to the account, and the member provides prior 
written authorization. However, NYSE Rules 352(b) and (c) do not 
require the prior written authorization of the customer as required 
under NASD Rule 2330(f)(1). In addition, NYSE Rule 352(c) expressly 
permits sharing in customer losses resulting from an error transaction. 
Similar to NASD Rule 2330(f)(2), NYSE Rule 352(d) (Certain Investment 
Advisory Arrangements) permits sharing arrangements that comply with 
Section 205 of the Advisers Act and the associated rules. However, NYSE 
Rule 352(d) does not require members to obtain the customer's prior 
written authorization as required under NASD Rule 2330(f)(2).
    FINRA is proposing to adopt NASD Rule 2330(f) as FINRA Rule 2150(c) 
in the Consolidated FINRA Rulebook, with only minor changes. 
Specifically, FINRA is proposing to delete the provision in NASD Rule 
2330(f)(2) regarding the registration status under the Advisers Act of 
members and associated persons acting as investment advisers. This 
provision was intended to clarify the application of the rule to 
broker-dealers that were deemed not to be subject to the Advisers Act 
under Rule 202(a)(11)-1 of the Advisers Act.\7\ Since Rule 202(a)(11)-1 
has been vacated, the provision is no longer necessary.
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    \7\ In 2005, the SEC adopted Advisers Act Rule 202(a)(11)-1, a 
principal purpose of which was to deem broker-dealers offering 
``fee-based brokerage accounts'' as not subject to the Advisers Act. 
In March 2007, Rule 202(a)(11)-1 was vacated. See Financial Planning 
Association v. SEC, 482 F.3d 481 (D.C. Cir. 2007).
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    FINRA is proposing to delete NYSE Rules 352(b), (c) and (d) because 
these provisions are substantially similar to proposed FINRA Rule 
2150(c) or are

[[Page 30201]]

otherwise incorporated as part of the supplementary material to 
proposed FINRA Rule 2150, as noted below.

d. Proposed Supplementary Material

    In addition, FINRA is proposing to add a ``Supplementary Material'' 
section to proposed FINRA Rule 2150 that would:
     Codify existing staff guidance clarifying that a 
``guarantee'' extended to all holders of a particular security by an 
issuer as part of that security generally would not be subject to the 
prohibition against guarantees \8\ and that a permissible sharing 
arrangement remains subject to other applicable FINRA rules; \9\
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    \8\ See SR-NASD-2002-180; Notice to Members 03-21 (April 2003). 
FINRA is proposing to make this clarification even though such 
arrangements do not implicate the express language of the rule, in 
light of member inquiries regarding such securities and existing 
staff guidance. See Securities Exchange Act Release No. 47354 
(February 12, 2003), 68 FR 8053 (February 19, 2003) (Order Approving 
File No. SR-NASD-2002-180).
    \9\ See id.
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     Clarify that the rule does not preclude a member from 
determining on an after-the-fact basis, to reimburse a customer for 
transaction losses, provided however that the member shall comply with 
all reporting requirements that may be applicable to such payment; \10\
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    \10\ Associated persons would not similarly be permitted to 
reimburse their customers for losses under the rule given the 
concern that such payments may conceal individual misconduct.
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     Consistent with NYSE Rule 352(c), clarify that the rule 
does not preclude a member from correcting a bona fide error; and,
     Clarify that the required written authorization(s) shall 
be preserved for a period of at least six years after the date the 
account is closed, which is consistent with the retention period under 
the SEA for similar records.
    FINRA intends to announce the implementation date of the proposed 
rule change in a Regulatory Notice to be published no later than 90 
days following Commission approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\11\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. FINRA believes that the proposed rule change will 
further the purposes of the Act by protecting investors against 
potential misconduct.
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    \11\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

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

    Written comments were neither solicited nor received.

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

    Within 35 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 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 e-mail to rule-comments@sec.gov. Please include 
File Number SR-FINRA-2009-014 on the subject line.

Paper Comments:

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.
All submissions should refer to File Number SR-FINRA-2009-014. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (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 inspection 
and copying 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. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-FINRA-2009-014 and should be 
submitted on or before July 15, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-14802 Filed 6-23-09; 8:45 am]
BILLING CODE P