Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and Nasdaq PHLX LLC, 981-982 [2024-00081]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 89, Number 5 (Monday, January 8, 2024)]
[Notices]
[Pages 981-982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00081]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99260; File No. 4-818]


Program for Allocation of Regulatory Responsibilities Pursuant to 
Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for 
the Allocation of Regulatory Responsibilities Between the Financial 
Industry Regulatory Authority, Inc. and Nasdaq PHLX LLC

January 2, 2024.
    On November 17, 2023, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') and Nasdaq PHLX LLC (``PHLX'') (together with FINRA, 
the ``Parties'') filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC'') a plan for the allocation of regulatory 
responsibilities, dated November 12, 2023 (``17d-2 Plan'' or the 
``Plan''). The Plan was published for comment on December 7, 2023.\1\ 
The Commission received no comments on the Plan. This order approves 
and declares effective the Plan.
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    \1\ See Securities Exchange Act Release No. 99065 (December 1, 
2023), 88 FR 85338.
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I. Introduction

    Section 19(g)(1) of the Securities Exchange Act of 1934 
(``Act''),\2\ among other things, requires every self-regulatory 
organization (``SRO'') registered as either a national securities 
exchange or national securities association to examine for, and enforce 
compliance by, its members and persons associated with its members with 
the Act, the rules and regulations thereunder, and the SRO's own rules, 
unless the SRO is relieved of this responsibility pursuant to Section 
17(d) or Section 19(g)(2) of the Act.\3\ Without this relief, the 
statutory obligation of each individual SRO could result in a pattern 
of multiple examinations of broker-dealers that maintain memberships in 
more than one SRO (``common members''). Such regulatory duplication 
would add unnecessary expenses for common members and their SROs.
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    \2\ 15 U.S.C. 78s(g)(1).
    \3\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
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    Section 17(d)(1) of the Act \4\ was intended, in part, to eliminate 
unnecessary multiple examinations and regulatory duplication.\5\ With 
respect to a common member, Section 17(d)(1) authorizes the Commission, 
by rule or order, to relieve an SRO of the responsibility to receive 
regulatory reports, to examine for and enforce compliance with 
applicable statutes, rules, and regulations, or to perform other 
specified regulatory functions.
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    \4\ 15 U.S.C. 78q(d)(1).
    \5\ See Securities Act Amendments of 1975, Report of the Senate 
Committee on Banking, Housing, and Urban Affairs to Accompany S. 
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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    To implement Section 17(d)(1), the Commission adopted two rules: 
Rule 17d-1 and Rule 17d-2 under the Act.\6\ Rule 17d-1 authorizes the 
Commission to name a single SRO as the designated examining authority 
(``DEA'') to examine common members for compliance with the financial 
responsibility requirements imposed by the Act, or by Commission or SRO 
rules.\7\ When an SRO has been named as a common member's DEA, all 
other SROs to which the common member belongs are relieved of the 
responsibility to examine the firm for compliance with the applicable 
financial responsibility rules. On its face, Rule 17d-1 deals only with 
an SRO's obligations to enforce member compliance with financial 
responsibility requirements. Rule 17d-1 does not relieve an SRO from 
its obligation to examine a common member for compliance with its own 
rules and provisions of the federal securities laws governing matters 
other than financial responsibility, including sales practices and 
trading activities and practices.
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    \6\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \7\ See Securities Exchange Act Release No. 12352 (April 20, 
1976), 41 FR 18808 (May 7, 1976).
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    To address regulatory duplication in these and other areas, the 
Commission adopted Rule 17d-2 under the Act.\8\ Rule 17d-2 permits SROs 
to propose joint plans for the allocation of regulatory 
responsibilities with respect to their common members. Under paragraph 
(c) of Rule 17d-2, the Commission may declare such a plan effective if, 
after providing for appropriate notice and comment, it determines that 
the plan is necessary or appropriate in the public interest and for the 
protection of investors; to foster cooperation and coordination among 
the SROs; to remove impediments to, and foster the development of, a 
national market system and a national clearance and settlement system; 
and is in conformity with the factors set forth in Section 17(d) of the 
Act. Commission approval of a plan filed pursuant to Rule 17d-2 
relieves an SRO of those regulatory responsibilities allocated by the 
plan to another SRO.
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    \8\ See Securities Exchange Act Release No. 12935 (October 28, 
1976), 41 FR 49091 (November 8, 1976).
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II. Proposed Plan

    The proposed 17d-2 Plan is intended to reduce regulatory 
duplication for firms that are common members of both PHLX and 
FINRA.\9\ Pursuant to the proposed 17d-2 Plan, FINRA would assume 
certain examination and enforcement responsibilities for common members 
with respect to certain applicable laws, rules, and regulations.
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    \9\ The proposed 17d-2 Plan refers to these common members as 
``Dual Members.'' See Paragraph 1(c) of the proposed 17d-2 Plan.
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    The text of the Plan delineates the proposed regulatory 
responsibilities with respect to the Parties. Included in the proposed 
Plan is an exhibit (the ``PHLX Certification of Common Rules,'' 
referred to herein as the ``Certification'') that lists every PHLX 
rule, and select federal securities laws, rules, and regulations, for 
which FINRA would bear responsibility under the Plan for overseeing and 
enforcing with respect to PHLX members that are also members of FINRA 
and the associated persons therewith (``Dual Members'').
    Specifically, under the 17d-2 Plan, FINRA would assume examination 
and enforcement responsibility relating to

[[Page 982]]

compliance by Dual Members with the rules of PHLX that are 
substantially similar to the applicable rules of FINRA,\10\ as well as 
any provisions of the federal securities laws and the rules and 
regulations thereunder delineated in the Certification (``Common 
Rules''). In the event that a Dual Member is the subject of an 
investigation relating to a transaction on PHLX, the plan acknowledges 
that PHLX may, in its discretion, exercise concurrent jurisdiction and 
responsibility for such matter.\11\
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    \10\ See paragraph 1(b) of the proposed 17d-2 Plan (defining 
Common Rules). See also paragraph 1(f) of the proposed 17d-2 Plan 
(defining Regulatory Responsibilities). Paragraph 2 of the Plan 
provides that annually, or more frequently as required by changes in 
either PHLX rules or FINRA rules, the parties shall review and 
update, if necessary, the list of Common Rules.
    \11\ See paragraph 5 of the proposed 17d-2 Plan.
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    Under the Plan, PHLX would retain full responsibility for 
surveillance, examination, investigation and enforcement with respect 
to trading activities or practices involving PHLX's own marketplace, 
including, without limitation, registration pursuant to its applicable 
rules of associated persons (i.e., registration rules that are not 
Common Rules); its duties as a DEA pursuant to Rule 17d-1 under the 
Act; and any PHLX rules that are not Common Rules.\12\
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    \12\ See paragraph 2 of the proposed 17d-2 Plan.
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III. Discussion

    The Commission finds that the proposed Plan is consistent with the 
factors set forth in Section 17(d) of the Act \13\ and Rule 17d-2(c) 
thereunder \14\ in that the proposed Plan is necessary or appropriate 
in the public interest and for the protection of investors, fosters 
cooperation and coordination among SROs, and removes impediments to and 
fosters the development of the national market system. In particular, 
the Commission believes that the proposed Plan should reduce 
unnecessary regulatory duplication by allocating to FINRA certain 
examination and enforcement responsibilities for common members that 
would otherwise be performed by PHLX and FINRA. Accordingly, the 
proposed Plan promotes efficiency by reducing costs to common members. 
Furthermore, because PHLX and FINRA will coordinate their regulatory 
functions in accordance with the Plan, the Plan should promote investor 
protection.
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    \13\ 15 U.S.C. 78q(d).
    \14\ 17 CFR 240.17d-2(c).
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    The Commission notes that, under the Plan, PHLX and FINRA have 
allocated regulatory responsibility for those PHLX rules, set forth in 
the Certification, that are substantially similar to the applicable 
FINRA rules in that examination for compliance with such provisions and 
rules would not require FINRA to develop one or more new examination 
standards, modules, procedures, or criteria in order to analyze the 
application of the rule, or a common member's activity, conduct, or 
output in relation to such rule. In addition, under the Plan, FINRA 
would assume regulatory responsibility for certain provisions of the 
federal securities laws and the rules and regulations thereunder that 
are set forth in the Certification. The Common Rules covered by the 
Plan are specifically listed in the Certification, as may be amended by 
the Parties from time to time.
    According to the Plan, PHLX will review the Certification, at least 
annually, or more frequently if required by changes in either the rules 
of PHLX or FINRA, and, if necessary, submit to FINRA an updated list of 
Common Rules to add PHLX rules not included on the then-current list of 
Common Rules that are substantially similar to FINRA rules; delete PHLX 
rules included in the then-current list of Common Rules that are no 
longer substantially similar to FINRA rules; and confirm that the 
remaining rules on the list of Common Rules continue to be PHLX rules 
that are substantially similar to FINRA rules.\15\ FINRA will then 
confirm in writing whether the rules listed in any updated list are 
Common Rules as defined in the Plan. The Commission believes that these 
provisions are designed to provide for continuing communication between 
the Parties to ensure the continued accuracy of the scope of the 
proposed allocation of regulatory responsibility.
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    \15\ See paragraph 2 of the Plan.
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    The Commission is hereby declaring effective a Plan that, among 
other things, allocates regulatory responsibility to FINRA for the 
oversight and enforcement of all PHLX rules that are substantially 
similar to the rules of FINRA for common members of PHLX and FINRA. 
Therefore, modifications to the Certification need not be filed with 
the Commission as an amendment to the Plan, provided that the Parties 
are only adding to, deleting from, or confirming changes to PHLX rules 
in the Certification in conformance with the definition of Common Rules 
provided in the Plan. However, should the Parties decide to add a PHLX 
rule to the Certification that is not substantially similar to a FINRA 
rule; delete a PHLX rule from the Certification that is substantially 
similar to a FINRA rule; or leave on the Certification a PHLX rule that 
is no longer substantially similar to a FINRA rule, then such a change 
would constitute an amendment to the Plan, which must be filed with the 
Commission pursuant to Rule 17d-2 under the Act.\16\
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    \16\ The Commission also notes that the addition to or deletion 
from the Certification of any federal securities laws, rules, and 
regulations for which FINRA would bear responsibility under the Plan 
for examining, and enforcing compliance by, common members, also 
would constitute an amendment to the Plan.
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IV. Conclusion

    This Order gives effect to the Plan filed with the Commission in 
File No. 4-818. The Parties shall notify all members affected by the 
Plan of their rights and obligations under the Plan.
    It is therefore ordered, pursuant to Section 17(d) of the Act, that 
the Plan in File No. 4-818, between FINRA and PHLX, filed pursuant to 
Rule 17d-2 under the Act, is approved and declared effective.
    It is further ordered that PHLX is relieved of those 
responsibilities allocated to FINRA under the Plan in File No. 4-818.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(34).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-00081 Filed 1-5-24; 8:45 am]
BILLING CODE 8011-01-P