Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, To Adopt Proposed Rule 6439 (Requirements for Member Inter-Dealer Quotation Systems) and Rescind the Rules Related to the OTC Bulletin Board Service, 653-657 [2020-29215]

Download as PDF Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Notices All submissions should refer to File Number SR–NYSEAMER–2020–88. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (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, on business days between the hours of 10:00 a.m. and 3:00 p.m., located at 100 F Street NE, Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NYSEAMER–2020–88 and should be submitted on or before February 22, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.26 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–29214 Filed 1–5–21; 8:45 am] jbell on DSKJLSW7X2PROD with NOTICES CFR 200.30–3(a)(12). VerDate Sep<11>2014 19:08 Jan 05, 2021 [Release No. 34–90824; File No. SR–FINRA– 2020–031] Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, To Adopt Proposed Rule 6439 (Requirements for Member Inter-Dealer Quotation Systems) and Rescind the Rules Related to the OTC Bulletin Board Service December 30, 2020. I. Introduction On September 24, 2020, the Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to rescind the rules related to the OTC Bulletin Board Service and cease its operation and to adopt new requirements for member inter-dealer quotation systems that disseminate quotations in equity securities traded over-the-counter (‘‘OTC’’). The proposed rule change was published for comment in the Federal Register on October 7, 2020.3 On November 4, 2020, pursuant to Section 19(b)(2) of the Act,4 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to disapprove the proposed rule change.5 On December 21, 2020, FINRA filed Amendment No. 1 to the proposed rule change.6 The U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Exchange Act Release No. 90067 (October 1, 2020), 85 FR 63314 (‘‘Notice’’). Comments on the proposed rule change can be found at: https:// www.sec.gov/comments/sr-finra-2020-031/ srfinra2020031.htm. 4 15 U.S.C. 78s(b)(2). 5 See Exchange Act Release No. 90335 (November 4, 2020). The Commission designated January 5, 2021 as the date by which the Commission shall approve or disapprove, or institute proceedings to determine whether to approve or disapprove, the proposed rule change. 6 Amendment No. 1 is a partial amendment in which FINRA included a representation that it will not cease operation of the OTCBB until the enhanced regulatory requirements under Rule 6439 (except for certain provisions related to order-level information reports that also relate to information required for the Consolidated Audit Trail) become effective. See infra note 41. Amendment No. 1 may be found at: https://www.sec.gov/comments/srfinra-2020-031/srfinra2020031.htm. Jkt 253001 Commission is publishing this notice and order to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons and to institute proceedings pursuant to Section 19(b)(2)(B) of the Act 7 to determine whether to approve or disapprove the proposed rule change, as modified by Amendment No. 1. II. Summary of the Proposal, as Modified by Amendment No. 1 As further described below, FINRA proposes to (i) rescind FINRA’s rules governing the OTC Bulletin Board Service (‘‘OTCBB’’) and cease its operation; and (ii) adopt new Rule 6439 (Requirements for Member Inter-Dealer Quotation Systems) to expand the obligations of member interdealer quotation systems (‘‘IDQSs’’) 8 that disseminate quotation updates on a realtime basis in OTC Equity Securities.9 A. Rescission of Rules Governing the OTCBB The OTCBB is a FINRA-operated IDQS available for use by broker-dealers to publish quotations in eligible OTC Equity Securities.10 FINRA has operated the OTCBB since 1990.11 FINRA states that, due to technological advancements since 1990 and the increase in alternative electronic venues with more extensive functionality than the OTCBB, the level of quotation activity occurring on the OTCBB has continued to decline over the past several years and is now nonexistent.12 FINRA represents that, as of the date that it filed the proposed rule change, the OTCBB does not display or widely disseminate quotation information on any OTC Equity Security.13 FINRA states that it does not believe that continued operation of the OTCBB serves any benefit to investors or the marketplace and that ceasing operation of the OTCBB would eliminate potential 1 15 2 17 BILLING CODE 8011–01–P 26 17 SECURITIES AND EXCHANGE COMMISSION 653 PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 7 15 U.S.C. 78s(b)(2)(B). Rule 6420(c) defines ‘‘inter-dealer quotation system’’ as ‘‘any system of general circulation to brokers or dealers which regularly disseminates quotations of identified brokers or dealers.’’ This definition tracks the Commission’s definition of the same term in Exchange Act Rule 15c2–11, 17 CFR 240.15c2–11. 9 The term ‘‘OTC Equity Security’’ is defined in FINRA Rule 6420(f) as any equity security that is not an ‘‘NMS stock’’ as that term is defined in Rule 600(b)(47) of Regulation NMS; provided, however, that the term ‘‘OTC Equity Security’’ shall not include any Restricted Equity Security. The term ‘‘Restricted Equity Security’’ is further defined in FINRA Rule 6420(k) to mean any equity security that meets the definition of ‘‘restricted security’’ as contained in Rule 144(a)(3) under the Securities Act of 1933. 10 See Notice, supra note 3, at 63315. 11 See id. 12 See id. 13 See id. 8 FINRA E:\FR\FM\06JAN1.SGM 06JAN1 654 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Notices investor confusion regarding the availability of quotation information for OTC Equity Securities.14 In addition, FINRA notes that it does not believe that the OTCBB, in its current state, furthers the goals and objectives of Section 17B of the Act and, therefore, does not meet the characteristics of a system described in Section 17B of the Act regarding the widespread dissemination of reliable and accurate quotation information with respect to ‘‘penny stocks.’’ 15 As a result, FINRA proposes to rescind the FINRA Rule 6500 Series, which governs the operation of the OTCBB. Among other things, the FINRA Rule 6500 Series contains provisions regarding the securities eligible to be quoted on the OTCBB (FINRA Rule 6530), market maker obligations on the OTCBB (FINRA Rule 6540), and transaction reporting (FINRA Rule 6550). FINRA also proposes to rescind FINRA Rule 7720, which sets forth the fees applicable to a broker-dealer that displays quotations or trading interest in the OTCBB, and to amend FINRA Rule 9217 (Violations Appropriate for Disposition Under Plan Pursuant to SEA Rule 19d–1(c)(2)) to remove reference to FINRA Rule 6550 (Transaction Reporting). While these proposed changes to the FINRA rulebook would cause the operation of the OTCBB to terminate when effective, in Amendment No. 1, FINRA states that it would not cease operation of the OTCBB until proposed Rule 6439 (except for proposed Rule 6439(d)(1)(B)), discussed below, is effective.16 B. Proposed Rule 6439 (Requirements for Member Inter-Dealer Quotation Systems) jbell on DSKJLSW7X2PROD with NOTICES FINRA states that all quotation activity in OTC Equity Securities now 14 See id. at 63318. For example, FINRA states that where investors look to feeds that solely disseminate OTCBB data for quotation information on a particular OTC Equity Security, investors mistakenly may conclude that there are no current quotations in the security (when, in fact, there may be numerous quotations available elsewhere—i.e., on member-operated IDQSs). See id. 15 Section 17B of the Act mandates, among other things, that the Commission facilitate the widespread dissemination of quotation information for penny stocks through automated quotation systems operated by registered securities associations. See 15 U.S.C 78q–2(b). Under Exchange Act Rule 3a51–1, ‘‘penny stock’’ is a nonNMS stock that among other things, does not include securities that have a price of five dollars or more as determined either on a per transaction basis or, in the absence of a transaction, on the basis of the inside bid quotation for the security displayed on an automated quotation system that has the characteristics set forth in Section 17B(b)(2) of the Act or any other system that is designated by the Commission. See 17 CFR 240.3a51–1. 16 See Amendment No. 1, supra note 6. VerDate Sep<11>2014 19:08 Jan 05, 2021 Jkt 253001 occurs on member-operated IDQSs, rather than the OTCBB.17 FINRA proposes, in conjunction with the cessation of the OTCBB, to adopt new requirements for member IDQSs that provide quotations in OTC Equity Securities in order to ensure that they have minimum standards in place.18 FINRA states that it believes that the proposed requirements would complement the existing framework governing the form and content of quotations 19 and are consistent with the goals and objectives of Section 17B of the Act regarding the facilitation of widespread dissemination of reliable and accurate quotation information in penny stocks.20 Proposed Rule 6439 would apply to member IDQSs (whether or not such member is also an alternative trading system (‘‘ATS’’)) that permits quotation updates on a real-time basis in OTC Equity Securities. Under proposed Rule 6439(a), member IDQSs must establish, maintain and enforce written policies and procedures relating to the collection and dissemination of quotation information in OTC Equity Securities on or through their systems. Such written policies and procedures must be reasonably designed to ensure that quotations received and disseminated are informative, reliable, accurate, firm, and treated in a not unfairly discriminatory manner, including by establishing non-discretionary standards under which quotations are prioritized and displayed.21 Member IDQSs must 17 See Notice, supra note 3 at 63320. at 63316. 19 FINRA currently has in place rules that govern the activity of member firms when they engage in quoting OTC Equity Securities. Specifically, the FINRA Rule 6400 Series (Quoting and Trading in OTC Equity Securities), among other things, provides a regulatory framework that governs the form and content of OTC Equity Securities’ quotations, and the FINRA Rule 5200 Series sets forth rules of general applicability that govern quoting and trading practices in this market sector (hereinafter, the FINRA Rule Series 6400 and 5200 are collectively referred to as the ‘‘FINRA Quotation Governance Rules’’). See Notice, supra note 3, at 63314–15. Rather than governing the activity of member firms, like the FINRA Quotation Governance Rules, proposed Rule 6439 would provide quotation governance standards for member IDQSs on or through which quotations are displayed. 20 See supra note 15. 21 For example, FINRA states that a member IDQS would be required to address in its procedures its methodology for ranking quotations, including at a minimum, addressing factors such as price (including any applicable quote access fee), size, time, capacity and type of quotation (such as unpriced quotes and bid/offer wanted quotations). The member IDQS also would be required to include any other factors relevant to the ranking and display of quotations (e.g., reserve sizes, quotation updates, treatment of closed quotations, and quotation information imported from other systems). See Notice, supra note 3, at 63316. 18 Id. PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 also prominently disclose these written policies and procedures, along with any material updates, modifications and revisions thereto, to subscribers within five business days following the date of establishment of a policy or procedure or implementation of a material change, as well as provide them to prospective subscribers upon request.22 Under proposed Rule 6439(b), each member IDQS must establish nondiscriminatory written standards for granting access to quoting and trading in OTC Equity Securities on its systems that do not unreasonably prohibit or limit any person with respect to access to services offered by such member IDQS.23 As with the requirements under proposed Rule 6439(a), member IDQSs would be required to prominently disclose these written standards relating to fair access, and any material updates, modifications and revisions thereto, to their subscribers within five business days following the date of establishment of written standards or implementation of a material change, as well as provide them to prospective subscribers upon request.24 In addition, member IDQSs would be required to make and keep records of all grants of access and all denials or limitations of access. Such records must include, for all subscribers, the reasons for granting access, and, for all denials or limitations of access, the reasons for denying or limiting such access.25 Proposed Rules 6439(c) and (d) would apply only to member IDQSs that do not automatically execute all orders presented for execution against displayed quotations for which a member subscriber has an obligation under FINRA Rule 5220 (Offers at Stated Prices) 26 (such a system is 22 FINRA states that a member that is an IDQS at the time of the effective date of this proposed rule change would be required to prominently disclose the required information to its subscribers upon the effective date of the proposed rule change and, thereafter, within five business days of the implementation of any material update, modification or revision thereto. See id., at n.16. 23 FINRA states that this proposed requirement is consistent with the ‘‘fair access’’ requirements of Regulation ATS but would apply to quoting and trading in all OTC Equity Securities on the member IDQS, regardless of the percentage of average daily volume that such member IDQS had in the security. See 17 CFR 242.301(b)(5). FINRA states that while certain member IDQSs may already be subject to the similar volume-based fair access requirements under Regulation ATS, proposed Rule 6439 would ensure the application of fair access requirements to all member IDQSs. See Notice, supra note 3, at 63316. 24 See id. at 63316–17. See also supra note 22. 25 See proposed Rule 6439(b). 26 FINRA Rule 5220 and its associated Supplementary Material set forth members’ firm quote obligations. Specifically, FINRA Rule 5220 provides that no member shall make an offer to buy from or sell to any person any security at a stated E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Notices jbell on DSKJLSW7X2PROD with NOTICES hereafter referred to as a ‘‘non-autoexecuting member IDQS’’). Under proposed Rule 6439(c), non-autoexecuting member IDQSs must establish, maintain and enforce written policies and procedures that are reasonably designed to address instances of unresponsiveness to orders in an OTC Equity Security. At a minimum, these policies and procedures must specify an efficient process for: (i) Monitoring subscriber unresponsiveness; (ii) subscribers to submit complaints to the non-autoexecuting member IDQS regarding potential instances of order unresponsiveness; (iii) documenting the subscriber’s rationale for unresponsiveness; and (iv) determining specified steps when an instance of, or repeated, order unresponsiveness may have occurred.27 Under proposed Rule 6439(d), nonauto-executing member IDQSs must report to FINRA, in a form and manner prescribed by FINRA,28 certain aggregate and order-level information in OTC Equity Securities. Specifically, proposed Rule 6439(d) would require a non-auto-executing member IDQS to report to FINRA on a monthly basis the following aggregated information, categorized by FINRA member subscriber market participant identifier (MPID) across all symbols quoted by the MPID during the previous calendar month: (i) Total number of marketable orders presented for execution against the MPID’s quotation; 29 (ii) average execution (full or partial) time for marketable orders presented against the MPID’s quotation based on the time an order is presented; (iii) total number of full or partial executions based on the time a marketable order is presented that are within the following execution timeframes: < 5 seconds; ≥ 5 and < 10 seconds; ≥ 10 and < 20 seconds; and ≥ 20 seconds; (iv) total number of marketable orders presented against the MPID’s quotation that did not receive a full or partial execution; and (v) average response time of the highest 10% and highest 50% of the MPID’s response price unless such member is prepared to purchase or sell, as the case may be, at such price and under such conditions as are stated at the time of such offer to buy or sell. 27 See Notice, supra note 3, at 63317. 28 FINRA states that following Commission approval, FINRA would announce in a Regulatory Notice details about the required manner and timing of the submission of this information to FINRA. See Notice, supra note 3, at 63317, n.27. 29 FINRA states that in this context, a ‘‘marketable order’’ refers to a message presented against a market maker’s quote that is priced to be immediately executable. See id., n.29. VerDate Sep<11>2014 19:08 Jan 05, 2021 Jkt 253001 times for marketable orders (for full or partial executions).30 Proposed Rule 6439(d) would require non-auto-executing member IDQSs to provide to FINRA the following orderlevel information for each order presented against an MPID’s quotation during the previous calendar month: (i) Buy/sell; (ii) security symbol; (iii) price; (iv) size; (v) All or None indicator (yes or no); (vi) order entry firm MPID; (vii) order receipt time; (viii) time in force; (ix) response time; (x) order response (e.g., execute, reject cancel, etc.); (xi) executed quantity; (xii) systemgenerated order number (if any); and (xiii) position in queue for quote (e.g., IL1, IL2).31 However, to the extent that the above order-level information is or becomes reportable under the Consolidated Audit Trail (‘‘CAT’’) pursuant to FINRA Rule 6830 (Industry Member Data Reporting), non-autoexecuting member IDQSs would not be required to report this order-level information under proposed Rule 6439(d).32 Proposed Rule 6439(e) would require each member IDQS to make available to customers on its website (or its affiliate distributor’s website) a written description of each OTC Equity Security order- or quotation-related data product offered by such member IDQS and related pricing information, including fees, rebates, discounts and crossproduct pricing incentives. Member IDQSs would be required to keep the relevant website page(s) accurate and up-to-date with respect to the required data product descriptions and pricing information and to make such information available at least two business days in advance of offering a data product.33 Proposed Rule 6439(e) would specify that a member IDQS is not precluded from negotiating lower fees with customers, provided that the member IDQS discloses on such website page(s) the circumstances under which it may do so. Finally, under proposed Rule 6439(f), a member IDQS must provide FINRA with prompt notification when it reasonably becomes aware of any systems disruption that is not de minimis that degrades, limits, or otherwise impacts the member IDQS’s functionality with respect to trading or 30 See proposed Rule 6439(d)(1)(A). proposed Rule 6439(d)(1)(B). 32 See proposed Rule 6439(d)(2). If such information is reportable to the CAT pursuant to FINRA Rule 6830, this information will be available to FINRA. Thus, separate reporting pursuant to proposed FINRA Rule 6439(d) would be duplicative. 33 See proposed Rule 6439(e). 31 See PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 655 the dissemination of market data.34 Such notification must include, on a reasonable best efforts basis, a brief description of the event, its impact, and the member IDQS’s resolution efforts.35 FINRA states that to comply with this requirement, a member IDQS that is an SCI ATS, as defined in Rule 1000 of Regulation SCI, could provide FINRA with the same information (or a duplicate copy of any notification) submitted to the Commission as required under Regulation SCI Rule 1002(b) 36 promptly after filing the notification with the Commission.37 FINRA states that if a member IDQS is not an SCI ATS, it could comply with this requirement by providing FINRA prompt notification when it reasonably becomes aware of any such systems disruption, and by providing periodic updates on the event and its resolution.38 Such notifications would include, on a reasonable best efforts basis, a brief description of the event, its impact, and resolution efforts.39 FINRA states that if the proposed rule change is approved by the Commission, FINRA will announce in a Regulatory Notice the effective date(s) of the proposed rule change, which may be phased in but will be no later than 365 days following Commission approval.40 The effective date for rescinding the rules related to the OTCBB will not occur until proposed Rule 6439 (except for Rule 6439(d)(1)(B)) is effective.41 FINRA also states that it will examine for compliance by member IDQSs with proposed Rule 6439, including by reviewing the adequacy of member IDQSs’ written policies and procedures and written fair access standards required under the proposal, conducting a targeted exam of impacted member IDQSs after the initial effectiveness of the rule, and incorporating a Rule 6439 34 FINRA would announce in a Regulatory Notice the methods and process by which members may provide systems disruption notifications to FINRA. See Notice, supra note 3, at 63318. 35 See proposed Rule 6439(f). 36 17 CFR 242.1002(b). 37 See Notice, supra note 3, at 63318. 38 See id. 39 See id. 40 See Notice, supra note 3, at 63319. 41 See Amendment No. 1, supra note 6. FINRA states that proposed Rule 6439, with one exception related to the reporting to FINRA of order-level information, will become effective at the same time as, or prior to, the rescission of the OTCBB rules. FINRA states that paragraph (d)(1)(B) of proposed Rule 6439 (requiring reporting of specified orderlevel information) may be phased in at a later date within the 365-day timeframe to allow FINRA to better coordinate with the timeline for reporting information in OTC Equity Securities to the CAT under FINRA Rule 6830 (Industry Member Data Reporting). See id. E:\FR\FM\06JAN1.SGM 06JAN1 656 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Notices jbell on DSKJLSW7X2PROD with NOTICES review as part of the regular exam program for impacted member firms.42 III. Proceedings To Determine Whether To Approve or Disapprove SR–FINRA– 2020–031, as Modified by Amendment No. 1, and Grounds for Disapproval Under Consideration The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act 43 to determine whether the proposed rule change, as modified by Amendment No. 1, should be approved or disapproved. Institution of such proceedings is appropriate at this time in view of the legal and policy issues raised by the proposal. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described below, the Commission seeks and encourages interested persons to provide comments on the proposed rule change to inform the Commission’s analysis of whether to approve or disapprove the proposal. Pursuant to Section 19(b)(2)(B) of the Act,44 the Commission is providing notice of the grounds for disapproval under consideration. The Commission is instituting proceedings to allow for additional analysis of the proposal’s consistency with the Act, and, in particular, with Section 15A(b)(6) of the Act, which requires, among other things, that the rules of a national securities association be ‘‘designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade,’’ and ‘‘to protect investors and the public interest,’’ 45 and Section 15A(b)(11) of the Act, which requires that the rules of a national securities association include provisions governing the form and content of quotations relating to securities sold otherwise than on a national securities exchange which may be distributed or published by any member or person associated with a member, and the persons to whom such quotations may be supplied, and that such rules ‘‘be designed to produce fair and informative quotations, to prevent fictitious or misleading quotations, and to promote orderly procedures for collecting, distributing, and publishing quotations.’’ 46 As discussed above, FINRA is proposing to rescind FINRA’s rules governing the OTCBB and cease its operation and adopt new Rule to 42 See 43 15 Notice, supra note 3, at 63316, n.17. U.S.C. 78s(b)(2)(B). 44 Id. 45 15 46 15 U.S.C. 78o–3(b)(6). U.S.C. 78o–3(b)(11). VerDate Sep<11>2014 19:08 Jan 05, 2021 Jkt 253001 expand the obligations of Member IDQSs that disseminate quotation updates on a real-time basis in OTC Equity Securities. The Commission has received three comment letters regarding the proposed rule change,47 and a response to comments from FINRA.48 In addition, on December 21, 2020, FINRA filed partial Amendment No. 1, which states that FINRA would not cease operation of the OTCBB until proposed Rule 6439 (except for proposed Rule 6439(d)(1)(B)) is effective.49 FINRA further states that paragraph (d)(1)(B) of proposed Rule 6439 (requiring reporting of specified order-level information) may be phased in at a later date within the 365-day timeframe to allow FINRA to better coordinate with the timeline for reporting information in OTC Equity Securities to the CAT under FINRA Rule 6830 (Industry Member Data Reporting).50 Given the filing of this recent amendment, and the comment letters received and the response from FINRA, the Commission is seeking additional public comment on the proposed rule change in order to determine whether it is consistent with the requirements of Sections 15A(b)(6) and 15A(b)(11) of the Act. The Commission notes that, under the Commission’s Rules of Practice, the ‘‘burden to demonstrate that a proposed rule change is consistent with the Act and the rules and regulations thereunder. . .is on the self-regulatory organization [‘SRO’] that proposed the rule change.’’ 51 The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,52 and any failure of an SRO to provide this information may result in the Commission not having sufficient basis to make an affirmative finding that a proposed rule change is consistent with the Act and the applicable rule and regulations.53 47 See Letters from Christopher Bok, Chief Compliance Officer, OTC Link, LLC, dated October 28, 2020; Kimberly Unger, CEO and Executive Director, The Security Traders Association of New York, Inc., dated October 28, 2020; and Sherry J. Sandler, Global OTC, dated November 9, 2020. 48 See Letter from Racquel Russell, Associate General Counsel, FINRA, dated November 20, 2020. 49 See supra note 6. 50 See id. See also supra notes 31–32 and accompanying text. 51 Rule 700(b)(3), Commission Rules of Practice, 17 CFR 201.700(b)(3). 52 See id. 53 See id. PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 IV. Procedure: Request for Written Comments The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change, as modified by Amendment No. 1, is consistent with Sections 15A(b)(6) and 15A(b)(11) of the Act or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.54 Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change, as modified by Amendment No. 1, should be approved or disapproved by January 27, 2021. Any person who wishes to file a rebuttal to any other person’s submission must file that rebuttal by February 10, 2021. The Commission asks that commenters address the sufficiency of FINRA’s statements in support of the proposal, which are set forth in the Notice and in Amendment No. 1,55 in addition to any other comments they may wish to submit about the proposed rule change. 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 rule-comments@ sec.gov. Please include File Number SR– FINRA–2020–031 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. 54 Section 19(b)(2) of the Act, as amended by the Securities Act Amendments of 1975, Public Law 94–29 (June 4, 1975), grants the Commission flexibility to determine what type of proceeding— either oral or notice and opportunity for written comments—is appropriate for consideration of a particular proposal by a self-regulatory organization. See Securities Act Amendments of 1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). 55 See supra notes 3 and 6. E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Notices All submissions should refer to File Number SR–FINRA–2020–031. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (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 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of FINRA. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–FNRA– 2020–031 and should be submitted on or before January 27, 2021. Rebuttal comments should be submitted by February 10, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.56 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–29215 Filed 1–5–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–90838; File No. SR– NYSEArca–2020–115] jbell on DSKJLSW7X2PROD with NOTICES Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE Arca Options Fee Schedule December 31, 2020. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the 56 17 CFR 200.30–3(a)(12) and 17 CFR 200.30– 3(a)(57). 1 15 U.S.C. 78s(b)(1). VerDate Sep<11>2014 19:08 Jan 05, 2021 Jkt 253001 ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on December 29, 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to modify the NYSE Arca Options Fee Schedule (‘‘Fee Schedule’’) to extend the waiver of certain Floor-based fixed fees. The Exchange proposes to implement the fee change effective January 1, 2021. The proposed rule change is available on the Exchange’s website at www.nyse.com, at the principal office of the Exchange, 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, the self-regulatory organization 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this filing is to modify the Fee Schedule to extend the waiver of certain Floor-based fixed fees for market participants that have been unable to resume their Floor operations to a certain capacity level, as discussed below. The Exchange proposes to implement the fee change effective January 1, 2021. On March 18, 2020, the Exchange announced that it would temporarily close the Trading Floor, effective Monday, March 23, 2020, as a precautionary measure to prevent the potential spread of COVID–19. 2 15 3 17 PO 00000 U.S.C. 78a. CFR 240.19b–4. Frm 00158 Fmt 4703 Sfmt 4703 657 Following the temporary closure of the Trading Floor, the Exchange waived certain Floor-based fixed fees for April and May 2020.4 Although the Trading Floor partially reopened on May 4, 2020 and Floor-based open outcry activity is supported, certain participants have been unable to resume pre-Floor closure levels of operations. As a result, the Exchange extended the fee waiver through December 2020, but only for Floor Broker firms that were unable to operate at more than 50% of their March 2020 on-Floor staffing levels and for Market Maker firms that have vacant or ‘‘unmanned’’ Podia for the entire month due to COVID–19 related considerations (the ‘‘Qualifying Firms’’).5 Because the Trading Floor will continue to operate with reduced capacity, the Exchange proposes to extend the fee waiver for Qualifying Firms through the earlier of the first full month of a full reopening of the Trading Floor facilities to Floor personnel or March 2021.6 Specifically, as with the prior fee waivers, the proposed fee waiver covers the following fixed fees for Qualifying Firms, which relate directly to Floor operations, are charged only to Floor participants and do not apply to participants that conduct business offFloor: • Floor Booths; • Market Maker Podia; • Options Floor Access; • Wire Services; and • ISP Connection.7 The proposed fee change is designed to reduce monthly costs for all Qualifying Firms whose operations continue to be disrupted even though the Trading Floor has partially reopened. In reducing this monthly financial burden, the proposed change would allow Qualifying Firms that had Floor operations in March 2020 to reallocate funds to assist with the cost of shifting and maintaining their prior fully-staffed on-Floor operations to offFloor and recoup losses as a result of the 4 See Securities Exchange Act Release Nos. 88596 (April 8, 2020), 85 FR 20796 (April 14, 2020) (SR– NYSEArca–2020–29); 88812 (May 5, 2020), 85 FR 27787 (May 11, 2020) (SR–NYSEArca–2020–38). 5 See Securities Exchange Act Release Nos. 89038 (June 10, 2020), 85 FR 36447 (June 16, 2020) (SR– NYSEArca–2020–52); 89242 (June 7, 2020), 85 FR 42037 (July 13, 2020) (SR–NYSEArca–2020–60); 89480 (August 5, 2020), 85 FR 48591 (August 11, 2020) (SR–NYSEArca–2020–69); 89694 (August 27, 2020), 85 FR 54608 (September 2, 2020) (SR– NYSEArca–2020–76); 90191 (October 15, 2020), 85 FR 67032 (October 21, 2020) (SR–NYSEArca–2020– 90). See also Fee Schedule, NYSE Arca OPTIONS: FLOOR and EQUIPMENT and CO-LOCATION FEES. 6 See proposed Fee Schedule, NYSE Arca OPTIONS: FLOOR and EQUIPMENT and COLOCATION FEES. 7 See id. E:\FR\FM\06JAN1.SGM 06JAN1

Agencies

[Federal Register Volume 86, Number 3 (Wednesday, January 6, 2021)]
[Notices]
[Pages 653-657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29215]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90824; File No. SR-FINRA-2020-031]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Amendment No. 1 and Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change, as Modified by Amendment No. 1, To Adopt Proposed 
Rule 6439 (Requirements for Member Inter-Dealer Quotation Systems) and 
Rescind the Rules Related to the OTC Bulletin Board Service

December 30, 2020.

I. Introduction

    On September 24, 2020, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to rescind the rules related to 
the OTC Bulletin Board Service and cease its operation and to adopt new 
requirements for member inter-dealer quotation systems that disseminate 
quotations in equity securities traded over-the-counter (``OTC''). The 
proposed rule change was published for comment in the Federal Register 
on October 7, 2020.\3\ On November 4, 2020, pursuant to Section 
19(b)(2) of the Act,\4\ the Commission designated a longer period 
within which to approve the proposed rule change, disapprove the 
proposed rule change, or institute proceedings to determine whether to 
disapprove the proposed rule change.\5\ On December 21, 2020, FINRA 
filed Amendment No. 1 to the proposed rule change.\6\ The Commission is 
publishing this notice and order to solicit comments on the proposed 
rule change, as modified by Amendment No. 1, from interested persons 
and to institute proceedings pursuant to Section 19(b)(2)(B) of the Act 
\7\ to determine whether to approve or disapprove the proposed rule 
change, as modified by Amendment No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 90067 (October 1, 2020), 85 FR 
63314 (``Notice''). Comments on the proposed rule change can be 
found at: https://www.sec.gov/comments/sr-finra-2020-031/srfinra2020031.htm.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Exchange Act Release No. 90335 (November 4, 2020). The 
Commission designated January 5, 2021 as the date by which the 
Commission shall approve or disapprove, or institute proceedings to 
determine whether to approve or disapprove, the proposed rule 
change.
    \6\ Amendment No. 1 is a partial amendment in which FINRA 
included a representation that it will not cease operation of the 
OTCBB until the enhanced regulatory requirements under Rule 6439 
(except for certain provisions related to order-level information 
reports that also relate to information required for the 
Consolidated Audit Trail) become effective. See infra note 41. 
Amendment No. 1 may be found at: https://www.sec.gov/comments/sr-finra-2020-031/srfinra2020031.htm.
    \7\ 15 U.S.C. 78s(b)(2)(B).
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II. Summary of the Proposal, as Modified by Amendment No. 1

    As further described below, FINRA proposes to (i) rescind FINRA's 
rules governing the OTC Bulletin Board Service (``OTCBB'') and cease 
its operation; and (ii) adopt new Rule 6439 (Requirements for Member 
Inter-Dealer Quotation Systems) to expand the obligations of member 
interdealer quotation systems (``IDQSs'') \8\ that disseminate 
quotation updates on a real-time basis in OTC Equity Securities.\9\
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    \8\ FINRA Rule 6420(c) defines ``inter-dealer quotation system'' 
as ``any system of general circulation to brokers or dealers which 
regularly disseminates quotations of identified brokers or 
dealers.'' This definition tracks the Commission's definition of the 
same term in Exchange Act Rule 15c2-11, 17 CFR 240.15c2-11.
    \9\ The term ``OTC Equity Security'' is defined in FINRA Rule 
6420(f) as any equity security that is not an ``NMS stock'' as that 
term is defined in Rule 600(b)(47) of Regulation NMS; provided, 
however, that the term ``OTC Equity Security'' shall not include any 
Restricted Equity Security. The term ``Restricted Equity Security'' 
is further defined in FINRA Rule 6420(k) to mean any equity security 
that meets the definition of ``restricted security'' as contained in 
Rule 144(a)(3) under the Securities Act of 1933.
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A. Rescission of Rules Governing the OTCBB

    The OTCBB is a FINRA-operated IDQS available for use by broker-
dealers to publish quotations in eligible OTC Equity Securities.\10\ 
FINRA has operated the OTCBB since 1990.\11\ FINRA states that, due to 
technological advancements since 1990 and the increase in alternative 
electronic venues with more extensive functionality than the OTCBB, the 
level of quotation activity occurring on the OTCBB has continued to 
decline over the past several years and is now nonexistent.\12\ FINRA 
represents that, as of the date that it filed the proposed rule change, 
the OTCBB does not display or widely disseminate quotation information 
on any OTC Equity Security.\13\
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    \10\ See Notice, supra note 3, at 63315.
    \11\ See id.
    \12\ See id.
    \13\ See id.
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    FINRA states that it does not believe that continued operation of 
the OTCBB serves any benefit to investors or the marketplace and that 
ceasing operation of the OTCBB would eliminate potential

[[Page 654]]

investor confusion regarding the availability of quotation information 
for OTC Equity Securities.\14\ In addition, FINRA notes that it does 
not believe that the OTCBB, in its current state, furthers the goals 
and objectives of Section 17B of the Act and, therefore, does not meet 
the characteristics of a system described in Section 17B of the Act 
regarding the widespread dissemination of reliable and accurate 
quotation information with respect to ``penny stocks.'' \15\
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    \14\ See id. at 63318. For example, FINRA states that where 
investors look to feeds that solely disseminate OTCBB data for 
quotation information on a particular OTC Equity Security, investors 
mistakenly may conclude that there are no current quotations in the 
security (when, in fact, there may be numerous quotations available 
elsewhere--i.e., on member-operated IDQSs). See id.
    \15\ Section 17B of the Act mandates, among other things, that 
the Commission facilitate the widespread dissemination of quotation 
information for penny stocks through automated quotation systems 
operated by registered securities associations. See 15 U.S.C 78q-
2(b). Under Exchange Act Rule 3a51-1, ``penny stock'' is a non-NMS 
stock that among other things, does not include securities that have 
a price of five dollars or more as determined either on a per 
transaction basis or, in the absence of a transaction, on the basis 
of the inside bid quotation for the security displayed on an 
automated quotation system that has the characteristics set forth in 
Section 17B(b)(2) of the Act or any other system that is designated 
by the Commission. See 17 CFR 240.3a51-1.
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    As a result, FINRA proposes to rescind the FINRA Rule 6500 Series, 
which governs the operation of the OTCBB. Among other things, the FINRA 
Rule 6500 Series contains provisions regarding the securities eligible 
to be quoted on the OTCBB (FINRA Rule 6530), market maker obligations 
on the OTCBB (FINRA Rule 6540), and transaction reporting (FINRA Rule 
6550). FINRA also proposes to rescind FINRA Rule 7720, which sets forth 
the fees applicable to a broker-dealer that displays quotations or 
trading interest in the OTCBB, and to amend FINRA Rule 9217 (Violations 
Appropriate for Disposition Under Plan Pursuant to SEA Rule 19d-
1(c)(2)) to remove reference to FINRA Rule 6550 (Transaction 
Reporting). While these proposed changes to the FINRA rulebook would 
cause the operation of the OTCBB to terminate when effective, in 
Amendment No. 1, FINRA states that it would not cease operation of the 
OTCBB until proposed Rule 6439 (except for proposed Rule 
6439(d)(1)(B)), discussed below, is effective.\16\
---------------------------------------------------------------------------

    \16\ See Amendment No. 1, supra note 6.
---------------------------------------------------------------------------

B. Proposed Rule 6439 (Requirements for Member Inter-Dealer Quotation 
Systems)

    FINRA states that all quotation activity in OTC Equity Securities 
now occurs on member-operated IDQSs, rather than the OTCBB.\17\ FINRA 
proposes, in conjunction with the cessation of the OTCBB, to adopt new 
requirements for member IDQSs that provide quotations in OTC Equity 
Securities in order to ensure that they have minimum standards in 
place.\18\ FINRA states that it believes that the proposed requirements 
would complement the existing framework governing the form and content 
of quotations \19\ and are consistent with the goals and objectives of 
Section 17B of the Act regarding the facilitation of widespread 
dissemination of reliable and accurate quotation information in penny 
stocks.\20\
---------------------------------------------------------------------------

    \17\ See Notice, supra note 3 at 63320.
    \18\ Id. at 63316.
    \19\ FINRA currently has in place rules that govern the activity 
of member firms when they engage in quoting OTC Equity Securities. 
Specifically, the FINRA Rule 6400 Series (Quoting and Trading in OTC 
Equity Securities), among other things, provides a regulatory 
framework that governs the form and content of OTC Equity 
Securities' quotations, and the FINRA Rule 5200 Series sets forth 
rules of general applicability that govern quoting and trading 
practices in this market sector (hereinafter, the FINRA Rule Series 
6400 and 5200 are collectively referred to as the ``FINRA Quotation 
Governance Rules''). See Notice, supra note 3, at 63314-15. Rather 
than governing the activity of member firms, like the FINRA 
Quotation Governance Rules, proposed Rule 6439 would provide 
quotation governance standards for member IDQSs on or through which 
quotations are displayed.
    \20\ See supra note 15.
---------------------------------------------------------------------------

    Proposed Rule 6439 would apply to member IDQSs (whether or not such 
member is also an alternative trading system (``ATS'')) that permits 
quotation updates on a real-time basis in OTC Equity Securities. Under 
proposed Rule 6439(a), member IDQSs must establish, maintain and 
enforce written policies and procedures relating to the collection and 
dissemination of quotation information in OTC Equity Securities on or 
through their systems. Such written policies and procedures must be 
reasonably designed to ensure that quotations received and disseminated 
are informative, reliable, accurate, firm, and treated in a not 
unfairly discriminatory manner, including by establishing non-
discretionary standards under which quotations are prioritized and 
displayed.\21\ Member IDQSs must also prominently disclose these 
written policies and procedures, along with any material updates, 
modifications and revisions thereto, to subscribers within five 
business days following the date of establishment of a policy or 
procedure or implementation of a material change, as well as provide 
them to prospective subscribers upon request.\22\
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    \21\ For example, FINRA states that a member IDQS would be 
required to address in its procedures its methodology for ranking 
quotations, including at a minimum, addressing factors such as price 
(including any applicable quote access fee), size, time, capacity 
and type of quotation (such as unpriced quotes and bid/offer wanted 
quotations). The member IDQS also would be required to include any 
other factors relevant to the ranking and display of quotations 
(e.g., reserve sizes, quotation updates, treatment of closed 
quotations, and quotation information imported from other systems). 
See Notice, supra note 3, at 63316.
    \22\ FINRA states that a member that is an IDQS at the time of 
the effective date of this proposed rule change would be required to 
prominently disclose the required information to its subscribers 
upon the effective date of the proposed rule change and, thereafter, 
within five business days of the implementation of any material 
update, modification or revision thereto. See id., at n.16.
---------------------------------------------------------------------------

    Under proposed Rule 6439(b), each member IDQS must establish non-
discriminatory written standards for granting access to quoting and 
trading in OTC Equity Securities on its systems that do not 
unreasonably prohibit or limit any person with respect to access to 
services offered by such member IDQS.\23\ As with the requirements 
under proposed Rule 6439(a), member IDQSs would be required to 
prominently disclose these written standards relating to fair access, 
and any material updates, modifications and revisions thereto, to their 
subscribers within five business days following the date of 
establishment of written standards or implementation of a material 
change, as well as provide them to prospective subscribers upon 
request.\24\ In addition, member IDQSs would be required to make and 
keep records of all grants of access and all denials or limitations of 
access. Such records must include, for all subscribers, the reasons for 
granting access, and, for all denials or limitations of access, the 
reasons for denying or limiting such access.\25\
---------------------------------------------------------------------------

    \23\ FINRA states that this proposed requirement is consistent 
with the ``fair access'' requirements of Regulation ATS but would 
apply to quoting and trading in all OTC Equity Securities on the 
member IDQS, regardless of the percentage of average daily volume 
that such member IDQS had in the security. See 17 CFR 242.301(b)(5). 
FINRA states that while certain member IDQSs may already be subject 
to the similar volume-based fair access requirements under 
Regulation ATS, proposed Rule 6439 would ensure the application of 
fair access requirements to all member IDQSs. See Notice, supra note 
3, at 63316.
    \24\ See id. at 63316-17. See also supra note 22.
    \25\ See proposed Rule 6439(b).
---------------------------------------------------------------------------

    Proposed Rules 6439(c) and (d) would apply only to member IDQSs 
that do not automatically execute all orders presented for execution 
against displayed quotations for which a member subscriber has an 
obligation under FINRA Rule 5220 (Offers at Stated Prices) \26\ (such a 
system is

[[Page 655]]

hereafter referred to as a ``non-auto-executing member IDQS''). Under 
proposed Rule 6439(c), non-auto-executing member IDQSs must establish, 
maintain and enforce written policies and procedures that are 
reasonably designed to address instances of unresponsiveness to orders 
in an OTC Equity Security. At a minimum, these policies and procedures 
must specify an efficient process for: (i) Monitoring subscriber 
unresponsiveness; (ii) subscribers to submit complaints to the non-
auto-executing member IDQS regarding potential instances of order 
unresponsiveness; (iii) documenting the subscriber's rationale for 
unresponsiveness; and (iv) determining specified steps when an instance 
of, or repeated, order unresponsiveness may have occurred.\27\
---------------------------------------------------------------------------

    \26\ FINRA Rule 5220 and its associated Supplementary Material 
set forth members' firm quote obligations. Specifically, FINRA Rule 
5220 provides that no member shall make an offer to buy from or sell 
to any person any security at a stated price unless such member is 
prepared to purchase or sell, as the case may be, at such price and 
under such conditions as are stated at the time of such offer to buy 
or sell.
    \27\ See Notice, supra note 3, at 63317.
---------------------------------------------------------------------------

    Under proposed Rule 6439(d), non-auto-executing member IDQSs must 
report to FINRA, in a form and manner prescribed by FINRA,\28\ certain 
aggregate and order-level information in OTC Equity Securities. 
Specifically, proposed Rule 6439(d) would require a non-auto-executing 
member IDQS to report to FINRA on a monthly basis the following 
aggregated information, categorized by FINRA member subscriber market 
participant identifier (MPID) across all symbols quoted by the MPID 
during the previous calendar month: (i) Total number of marketable 
orders presented for execution against the MPID's quotation; \29\ (ii) 
average execution (full or partial) time for marketable orders 
presented against the MPID's quotation based on the time an order is 
presented; (iii) total number of full or partial executions based on 
the time a marketable order is presented that are within the following 
execution timeframes: < 5 seconds; >= 5 and < 10 seconds; >= 10 and < 
20 seconds; and >= 20 seconds; (iv) total number of marketable orders 
presented against the MPID's quotation that did not receive a full or 
partial execution; and (v) average response time of the highest 10% and 
highest 50% of the MPID's response times for marketable orders (for 
full or partial executions).\30\
---------------------------------------------------------------------------

    \28\ FINRA states that following Commission approval, FINRA 
would announce in a Regulatory Notice details about the required 
manner and timing of the submission of this information to FINRA. 
See Notice, supra note 3, at 63317, n.27.
    \29\ FINRA states that in this context, a ``marketable order'' 
refers to a message presented against a market maker's quote that is 
priced to be immediately executable. See id., n.29.
    \30\ See proposed Rule 6439(d)(1)(A).
---------------------------------------------------------------------------

    Proposed Rule 6439(d) would require non-auto-executing member IDQSs 
to provide to FINRA the following order-level information for each 
order presented against an MPID's quotation during the previous 
calendar month: (i) Buy/sell; (ii) security symbol; (iii) price; (iv) 
size; (v) All or None indicator (yes or no); (vi) order entry firm 
MPID; (vii) order receipt time; (viii) time in force; (ix) response 
time; (x) order response (e.g., execute, reject cancel, etc.); (xi) 
executed quantity; (xii) system-generated order number (if any); and 
(xiii) position in queue for quote (e.g., IL1, IL2).\31\ However, to 
the extent that the above order-level information is or becomes 
reportable under the Consolidated Audit Trail (``CAT'') pursuant to 
FINRA Rule 6830 (Industry Member Data Reporting), non-auto-executing 
member IDQSs would not be required to report this order-level 
information under proposed Rule 6439(d).\32\
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    \31\ See proposed Rule 6439(d)(1)(B).
    \32\ See proposed Rule 6439(d)(2). If such information is 
reportable to the CAT pursuant to FINRA Rule 6830, this information 
will be available to FINRA. Thus, separate reporting pursuant to 
proposed FINRA Rule 6439(d) would be duplicative.
---------------------------------------------------------------------------

    Proposed Rule 6439(e) would require each member IDQS to make 
available to customers on its website (or its affiliate distributor's 
website) a written description of each OTC Equity Security order- or 
quotation-related data product offered by such member IDQS and related 
pricing information, including fees, rebates, discounts and cross-
product pricing incentives. Member IDQSs would be required to keep the 
relevant website page(s) accurate and up-to-date with respect to the 
required data product descriptions and pricing information and to make 
such information available at least two business days in advance of 
offering a data product.\33\ Proposed Rule 6439(e) would specify that a 
member IDQS is not precluded from negotiating lower fees with 
customers, provided that the member IDQS discloses on such website 
page(s) the circumstances under which it may do so.
---------------------------------------------------------------------------

    \33\ See proposed Rule 6439(e).
---------------------------------------------------------------------------

    Finally, under proposed Rule 6439(f), a member IDQS must provide 
FINRA with prompt notification when it reasonably becomes aware of any 
systems disruption that is not de minimis that degrades, limits, or 
otherwise impacts the member IDQS's functionality with respect to 
trading or the dissemination of market data.\34\ Such notification must 
include, on a reasonable best efforts basis, a brief description of the 
event, its impact, and the member IDQS's resolution efforts.\35\ FINRA 
states that to comply with this requirement, a member IDQS that is an 
SCI ATS, as defined in Rule 1000 of Regulation SCI, could provide FINRA 
with the same information (or a duplicate copy of any notification) 
submitted to the Commission as required under Regulation SCI Rule 
1002(b) \36\ promptly after filing the notification with the 
Commission.\37\ FINRA states that if a member IDQS is not an SCI ATS, 
it could comply with this requirement by providing FINRA prompt 
notification when it reasonably becomes aware of any such systems 
disruption, and by providing periodic updates on the event and its 
resolution.\38\ Such notifications would include, on a reasonable best 
efforts basis, a brief description of the event, its impact, and 
resolution efforts.\39\
---------------------------------------------------------------------------

    \34\ FINRA would announce in a Regulatory Notice the methods and 
process by which members may provide systems disruption 
notifications to FINRA. See Notice, supra note 3, at 63318.
    \35\ See proposed Rule 6439(f).
    \36\ 17 CFR 242.1002(b).
    \37\ See Notice, supra note 3, at 63318.
    \38\ See id.
    \39\ See id.
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    FINRA states that if the proposed rule change is approved by the 
Commission, FINRA will announce in a Regulatory Notice the effective 
date(s) of the proposed rule change, which may be phased in but will be 
no later than 365 days following Commission approval.\40\ The effective 
date for rescinding the rules related to the OTCBB will not occur until 
proposed Rule 6439 (except for Rule 6439(d)(1)(B)) is effective.\41\ 
FINRA also states that it will examine for compliance by member IDQSs 
with proposed Rule 6439, including by reviewing the adequacy of member 
IDQSs' written policies and procedures and written fair access 
standards required under the proposal, conducting a targeted exam of 
impacted member IDQSs after the initial effectiveness of the rule, and 
incorporating a Rule 6439

[[Page 656]]

review as part of the regular exam program for impacted member 
firms.\42\
---------------------------------------------------------------------------

    \40\ See Notice, supra note 3, at 63319.
    \41\ See Amendment No. 1, supra note 6. FINRA states that 
proposed Rule 6439, with one exception related to the reporting to 
FINRA of order-level information, will become effective at the same 
time as, or prior to, the rescission of the OTCBB rules. FINRA 
states that paragraph (d)(1)(B) of proposed Rule 6439 (requiring 
reporting of specified order-level information) may be phased in at 
a later date within the 365-day timeframe to allow FINRA to better 
coordinate with the timeline for reporting information in OTC Equity 
Securities to the CAT under FINRA Rule 6830 (Industry Member Data 
Reporting). See id.
    \42\ See Notice, supra note 3, at 63316, n.17.
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III. Proceedings To Determine Whether To Approve or Disapprove SR-
FINRA-2020-031, as Modified by Amendment No. 1, and Grounds for 
Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \43\ to determine whether the proposed rule 
change, as modified by Amendment No. 1, should be approved or 
disapproved. Institution of such proceedings is appropriate at this 
time in view of the legal and policy issues raised by the proposal. 
Institution of proceedings does not indicate that the Commission has 
reached any conclusions with respect to any of the issues involved. 
Rather, as described below, the Commission seeks and encourages 
interested persons to provide comments on the proposed rule change to 
inform the Commission's analysis of whether to approve or disapprove 
the proposal.
---------------------------------------------------------------------------

    \43\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Act,\44\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposal's consistency with the Act, and, in 
particular, with Section 15A(b)(6) of the Act, which requires, among 
other things, that the rules of a national securities association be 
``designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade,'' and ``to protect 
investors and the public interest,'' \45\ and Section 15A(b)(11) of the 
Act, which requires that the rules of a national securities association 
include provisions governing the form and content of quotations 
relating to securities sold otherwise than on a national securities 
exchange which may be distributed or published by any member or person 
associated with a member, and the persons to whom such quotations may 
be supplied, and that such rules ``be designed to produce fair and 
informative quotations, to prevent fictitious or misleading quotations, 
and to promote orderly procedures for collecting, distributing, and 
publishing quotations.'' \46\
---------------------------------------------------------------------------

    \44\ Id.
    \45\ 15 U.S.C. 78o-3(b)(6).
    \46\ 15 U.S.C. 78o-3(b)(11).
---------------------------------------------------------------------------

    As discussed above, FINRA is proposing to rescind FINRA's rules 
governing the OTCBB and cease its operation and adopt new Rule to 
expand the obligations of Member IDQSs that disseminate quotation 
updates on a real-time basis in OTC Equity Securities. The Commission 
has received three comment letters regarding the proposed rule 
change,\47\ and a response to comments from FINRA.\48\ In addition, on 
December 21, 2020, FINRA filed partial Amendment No. 1, which states 
that FINRA would not cease operation of the OTCBB until proposed Rule 
6439 (except for proposed Rule 6439(d)(1)(B)) is effective.\49\ FINRA 
further states that paragraph (d)(1)(B) of proposed Rule 6439 
(requiring reporting of specified order-level information) may be 
phased in at a later date within the 365-day timeframe to allow FINRA 
to better coordinate with the timeline for reporting information in OTC 
Equity Securities to the CAT under FINRA Rule 6830 (Industry Member 
Data Reporting).\50\ Given the filing of this recent amendment, and the 
comment letters received and the response from FINRA, the Commission is 
seeking additional public comment on the proposed rule change in order 
to determine whether it is consistent with the requirements of Sections 
15A(b)(6) and 15A(b)(11) of the Act.
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    \47\ See Letters from Christopher Bok, Chief Compliance Officer, 
OTC Link, LLC, dated October 28, 2020; Kimberly Unger, CEO and 
Executive Director, The Security Traders Association of New York, 
Inc., dated October 28, 2020; and Sherry J. Sandler, Global OTC, 
dated November 9, 2020.
    \48\ See Letter from Racquel Russell, Associate General Counsel, 
FINRA, dated November 20, 2020.
    \49\ See supra note 6.
    \50\ See id. See also supra notes 31-32 and accompanying text.
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    The Commission notes that, under the Commission's Rules of 
Practice, the ``burden to demonstrate that a proposed rule change is 
consistent with the Act and the rules and regulations thereunder. . .is 
on the self-regulatory organization [`SRO'] that proposed the rule 
change.'' \51\ The description of a proposed rule change, its purpose 
and operation, its effect, and a legal analysis of its consistency with 
applicable requirements must all be sufficiently detailed and specific 
to support an affirmative Commission finding,\52\ and any failure of an 
SRO to provide this information may result in the Commission not having 
sufficient basis to make an affirmative finding that a proposed rule 
change is consistent with the Act and the applicable rule and 
regulations.\53\
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    \51\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 
201.700(b)(3).
    \52\ See id.
    \53\ See id.
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IV. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposed rule 
change, as modified by Amendment No. 1, is consistent with Sections 
15A(b)(6) and 15A(b)(11) of the Act or any other provision of the Act, 
or the rules and regulations thereunder. Although there do not appear 
to be any issues relevant to approval or disapproval that would be 
facilitated by an oral presentation of views, data, and arguments, the 
Commission will consider, pursuant to Rule 19b-4, any request for an 
opportunity to make an oral presentation.\54\
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    \54\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change, as modified by 
Amendment No. 1, should be approved or disapproved by January 27, 2021. 
Any person who wishes to file a rebuttal to any other person's 
submission must file that rebuttal by February 10, 2021.
    The Commission asks that commenters address the sufficiency of 
FINRA's statements in support of the proposal, which are set forth in 
the Notice and in Amendment No. 1,\55\ in addition to any other 
comments they may wish to submit about the proposed rule change.
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    \55\ See supra notes 3 and 6.
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    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-2020-031 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.


[[Page 657]]


All submissions should refer to File Number SR-FINRA-2020-031. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (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 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of FINRA. All comments received 
will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-FNRA-2020-031 and should be submitted on 
or before January 27, 2021. Rebuttal comments should be submitted by 
February 10, 2021.
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    \56\ 17 CFR 200.30-3(a)(12) and 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\56\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-29215 Filed 1-5-21; 8:45 am]
BILLING CODE 8011-01-P
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