
[Federal Register: November 23, 2009 (Volume 74, Number 224)]
[Notices]               
[Page 61189-61192]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no09-101]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61012; File No. SR-FINRA-2007-006]

 
Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Amendment Nos. 1, 2, 3, and 4 and 
Order Granting Accelerated Approval to Proposed Rule Change, as 
Modified by Amendment Nos. 1, 2, 3, and 4, Relating to Historic TRACE 
Data

November 16, 2009.

I. Introduction

    On August 9, 2007, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') (f/k/a National Association of Securities Dealers, 
Inc. (``NASD'')) filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposal to provide for public access to historic Trade Reporting and 
Compliance Engine (``TRACE'') data (``Historic TRACE Data''). The 
proposal was published for comment in the Federal Register on September 
10, 2007.\3\ The Commission received one comment on the proposal.\4\ 
FINRA responded to the comment letter on October 11, 2007.\5\ On 
December 12, 2007, FINRA filed Amendment No. 1 to the proposed rule 
change. On December 30, 2008, FINRA filed Amendment No. 2 to the 
proposed rule change. On October 15, 2009, FINRA filed Amendment No. 3 
to the proposed rule change. On November 12, 2009, FINRA filed 
Amendment No. 4 to the proposed rule change.\6\ The Commission is 
publishing this notice to solicit comments on the proposed rule change 
as modified by Amendment Nos. 1, 2, 3, and 4, and is approving the 
proposed rule change, as modified by Amendment Nos. 1, 2, 3, and 4, on 
an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 56327 (August 28, 2007), 
72 FR 51689 (September 10, 2007) (``Notice'').
    \4\ See letter from Christopher Gilkerson and Gregory Babyak, 
Co-Chairs, Market Data Subcommittee, Technology and Regulation 
Committee, Securities Industry and Financial Markets Association 
(``SIFMA''), to Nancy M. Morris, Secretary, Commission, dated 
October 3, 2007 (``SIFMA Letter'').
    \5\ See letter from Sharon Zackula, Associate Vice President and 
Associate General Counsel, FINRA, to Nancy M. Morris, Secretary, 
Commission, dated October 11, 2007 (``FINRA Response to Comments'').
    \6\ For information about the four amendments, see infra Section 
III.
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II. Description of the Proposed Rule Change

    FINRA has proposed to make Historic TRACE Data publicly available 
and to amend FINRA Rule 7730 to establish fees for such data. FINRA 
currently makes publicly available aggregated data regarding both 
disseminated and non-disseminated transactions, but in a manner that 
protects transaction-level non-disseminated data from being 
ascertained. FINRA stated that many people have expressed interest in 
reviewing historic transaction-level data and believes it is important 
to provide access to this data, particularly for research purposes.\7\
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    \7\ Before submitting the proposal, FINRA (then known as NASD) 
sought member input about whether FINRA should release standard 
TRACE transaction-level data to the public; if access should be 
limited in any way; if the data should be redacted as to certain 
types of information; and if FINRA should provide access to any 
portion of the transaction-level historic data that previously had 
only been reported, but not disseminated. See NASD Notice to Members 
06-32 (June 2006). The sole commenter was The Bond Market 
Association (``TBMA'') (now known as SIFMA). See comment letter from 
Mary C.M. Kuan, Vice President and Assistant General Counsel, TBMA, 
to Barbara Z. Sweeney, Office of the Corporate Secretary, NASD, 
dated August 14, 2006. TBMA supported access to the transaction-
level historic data, provided that the data had no member 
participant identifiers and were sufficiently aged to eliminate any 
possibility of identifying current positions or trading strategies.
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    Under this proposal, data regarding transactions reported to TRACE 
since July 1, 2002 (except Rule 144A transactions) will be made 
publicly available. This data will generally consist of basic 
transaction information such as the price, the date and time of 
execution, and the yield. Certain information that will be made 
available--such as actual trade volumes, rather than capped volume 
amounts that are disseminated as part of the real-time TRACE data--has 
not previously been disclosed. Historic TRACE Data will be updated 
quarterly and provided using quarterly files or reports. FINRA 
currently intends to release only transaction data that have aged at 
least 18 months. FINRA may change the disclosed elements to respond to 
user needs, improve the usefulness of the data, and foster the 
extensive use of such data in research on the corporate bond markets. 
FINRA has represented that it would publish any changes to data 
elements provided in a FINRA Notice.
    The proposed amendments to FINRA Rule 7730 would establish fees for 
obtaining Historic TRACE Data and create different pricing structures 
for different classes of users. A Professional \8\ will be subject to 
the following fees under proposed FINRA Rule 7730(d)(1)(A): (1) An 
initial fee of $2,000, which includes development and set-up costs; (2) 
a fee of $2,000 per calendar year per Data Set \9\ for Historic TRACE 
Data \10\; and (3) a ``bulk re-distribution fee'' of $1 per CUSIP per 
calendar year (or part thereof) within a single Data Set of Historic 
TRACE data per each recipient of re-distributed data, with a maximum 
fee per Data Set of $1,000 per calendar year (or part thereof) per each 
recipient of re-distributed data.\11\
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    \8\ For purposes of FINRA Rule 7730, ``Professional'' means a 
person who is not a Non-Professional, as defined in FINRA Rule 
7730(f), as modified by Amendment No. 3 (formerly in NASD Rule 
7730(c)(3)(A)). See e-mail from Sharon Zackula, Associate Vice 
President and Associate General Counsel, FINRA, to Michael Gaw, 
Assistant Director, and Geoffrey Pemble, Special Counsel, Division 
of Trading and Markets, Commission, dated December 11, 2008.
    \9\ In Amendment No. 3, FINRA proposed revisions to Rule 7730 to 
reflect pricing for multiple ``Data Sets'' as a result of a recent 
change to Rule 7730 in SR-FINRA-2009-010. See Amendment No. 3, infra 
Section III.
    \10\ The 2003 Historic Corporate Bond Data Set also includes the 
2002 Historic Corporate Bond Data Set. See Amendment No. 3.
    \11\ The data that may be purchased under the data fee would be 
enabled for internal use and internal and/or external desktop 
display distribution. Re-distribution would be permitted only if the 
subscriber paid the bulk re-distribution fee.
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    A Tax-Exempt Organization \12\ will be subject to the following 
fees under proposed FINRA Rule 7730(d)(1)(B): (1) A single, data set-up 
fee of $1,000, which includes development and set-up costs; and (2) a 
data and bulk re-distribution fee of $500 per calendar year per Data 
Set for receipt of Historic TRACE Data.\13\ An organization

[[Page 61190]]

qualifies for the Tax-Exempt Organization fees if it does not re-
distribute Historic TRACE Data in bulk, or if it re-distributes such 
data in bulk or otherwise at no charge solely to Non-Professionals \14\ 
or other Tax-Exempt Organizations that agree to be subject to the same 
restrictions.\15\
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    \12\ ``Tax-Exempt Organization'' as used in proposed Rule 7730 
means an organization that is described in Section 501(c) of the 
Internal Revenue Code (26 U.S.C. 501(c)) and has received 
recognition of the exemption from federal income taxes from the 
Internal Revenue Service. See proposed FINRA Rule 7730(f)(2).
    \13\ The 2003 Historic Corporate Bond Data Set also includes the 
2002 Historic Corporate Bond Data Set. See Amendment No. 3. Data 
that may be purchased under the data and bulk re-distribution fee 
would be enabled for internal use and internal and/or external 
desktop display distribution. In addition, the right to re-
distribute the data in bulk is included in the non-professional data 
and bulk re-distribution fee.
    \14\ A ``Non-Professional'' as used in FINRA Rule 7730 is a 
natural person who uses TRACE transaction data solely for his or her 
personal, non-commercial use. A Non-Professional subscriber must 
agree to certain terms of use of the TRACE data, including that he 
or she receive and use the TRACE transaction data solely for his or 
her personal, non-commercial use. See proposed FINRA Rule 
7730(f)(1).
    \15\ See Amendment No. 4.
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    FINRA also stated that it occasionally receives ad hoc requests for 
Historic TRACE Data from natural persons for non-commercial use. Under 
the proposal, FINRA may provide Historic TRACE Data to a natural person 
if the person represents that he or she is a Non-Professional; will 
receive and use the historic TRACE data solely for personal, non-
commercial use; and is not engaged in, and indicates that he or she has 
no intention to engage in, any re-distribution of all or any portion of 
the data. FINRA may impose a fee under FINRA Rule 7730(e) to respond to 
such ad hoc requests. If FINRA charges a fee, it would do so to cover 
the administrative and operational costs of responding to such a 
request. Specifically, proposed FINRA Rule 7730(d)(2) states that that 
such a fee would be ``cost-neutral'' and would be ``comprised solely of 
the cost of the media and the cost of delivery (e.g., U.S. Postal 
Service or other requested delivery service).'' \16\
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    \16\ Amendment No. 1.
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    FINRA has represented that the effective date of the proposed rule 
change will be announced in a Regulatory Notice to be published no 
later than 150 days following Commission approval, and the effective 
date will be no later than one to 30 days following the effective date 
of SR-FINRA-2009-010.\17\
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    \17\ See Amendment No. 4.
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III. Amendment Nos. 1, 2, 3, and 4

    As originally filed, FINRA would have discretion whether to charge 
a fee for providing Historic TRACE Data to a Non-Professional. If FINRA 
decided to charge a fee, the fee would have been to recover ``the 
administrative and operational costs of responding to such a request,'' 
which referred to miscellaneous costs, such as postage. However, such 
costs were not specified in the rule text. In Amendment No. 1, FINRA 
amended proposed FINRA Rule 7730(d)(2) to specify that, when providing 
Historic TRACE Data to a Non-Professional, FINRA would charge a cost-
neutral fee that is comprised solely of the cost of the media (such as 
a CD) used to store and deliver the data to the Non-Professional and 
the cost of delivery (such as postage or an express mail fee). In 
Amendment No. 1, FINRA also corrected certain technical errors.
    In Amendment No. 2, FINRA amended the proposed rule change to 
reflect the renumbering of NASD Rule 7030 as FINRA Rule 7730 pursuant 
to the adoption of certain sections of the FINRA Consolidated Rulebook, 
as described below. In addition, FINRA made two non-substantive rule 
text amendments to reflect changes in FINRA style convention.
    On September 25, 2008, the Commission approved proposed rule change 
SR-FINRA-2008-021, in which FINRA proposed, among other things, to 
adopt the NASD Marketplace Rules (the NASD Rule 4000 through 7000 
Series) as the FINRA Rule 6000 through 7000 Series in the Consolidated 
FINRA Rulebook. The rule change became effective December 15, 2008, and 
NASD Rule 7030 was transferred to the Consolidated FINRA Rulebook as 
FINRA Rule 7730.\18\
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    \18\ See Securities Exchange Act Release No. 58643 (September 
25, 2008), 73 FR 57174 (October 1, 2008) (Order Approving SR-FINRA-
2008-021, SR-FINRA-2008-022, SR-FINRA-2008-026, SR-FINRA-2008-028, 
and SR-FINRA-2008-029).
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    In SR-FINRA-2008-021, FINRA made non-material changes to NASD Rule 
7030 to: renumber the rule as Rule 7730 and changing all internal 
references to the rule number accordingly; change references to the 
``Rule 6200 Series'' to the FINRA ``Rule 6700 Series,'' which is the 
renumbered TRACE rule series; delete references to ``NASD'' and replace 
them with ``FINRA;'' change ``as of '' to ``as/of ''; and change 
``Commission'' to ``SEC''.
    After FINRA filed Amendment No. 2, the Commission approved proposed 
rule change SR-FINRA-2009-010,\19\ which included amendments to Rule 
7730. Among other changes, FINRA proposed to distinguish TRACE 
transaction data as two data bases (``Data Sets''), one comprised 
solely of corporate bond transaction information (the ``Corporate Bonds 
Data Set'') and a second data set comprised solely of Agency debt 
securities transaction information (``Agency Data Set''). Prior to SR-
FINRA-2009-010, TRACE data was organized in a single corporate bond 
transaction database. As proposed in SR-FINRA-2009-010, each new Data 
Set would include the relevant transaction data, including primary 
transactions if applicable, and relevant fees would be charged per Data 
Set. Consequently, FINRA filed Amendment No. 3 to incorporate changes 
to the rule text of Rule 7730 approved in SR-FINRA-2009-010, including 
Rule 7730's application to these two Data Sets. Although the proposed 
amendments will require a person desiring to receive Historic TRACE 
Data to pay only one set-up fee, all other fees for Historic TRACE Data 
will be assessed per Data Set.\20\ In addition, FINRA has proposed to 
renumber the three defined terms in Rule 7730(c)(3)(A), (B), and (C) as 
Rule 7730(f)(1), (2), and (3), and the proposed definition of 
``Historic TRACE Data,'' as Rule 7730(f)(4). FINRA also proposes to 
incorporate minor amendments to the definition of ``Tax-Exempt 
Organization'' to delete the conditions regarding re-distribution of 
data that a Tax-Exempt Organization must adhere to in order to receive 
data under the reduced fee provisions for such organizations, and to 
restate such conditions in other parts of Rule 7730, where appropriate 
(The conditions regarding re-distribution were not substantively 
amended).
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    \19\ See Securities Exchange Act Release No. 60726 (September 
28, 2009), 74 FR 50991 (October 2, 2009) (Order Approving SR-FINRA-
2009-010); see also Regulatory Notice 09-57 (SEC Approves Amendments 
Expanding TRACE to Include Agency Debt Securities and Primary Market 
Transactions) (September 2009).
    \20\ Because transactions in Agency Debt Securities will not 
begin to be reported until March 1, 2010, the Historic Agency Data 
Set will not be populated with transaction data until that time. 
Also, as stated in proposed Rule 7730(f)(4), Historic TRACE Data 
will not become available until the transaction data have aged at 
least 18 months. Therefore, although the Historic Agency Data Set is 
incorporated in this proposed rule change, there will not be any 
Historic Agency Data to purchase until at least 18 to 24 months 
after March 1, 2010, the date when transaction data begins to be 
reported and the Historic Agency Data Set begins to be populated.
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    Also, in Amendment No. 3, FINRA provided additional information 
regarding the business, technical, administrative, data recovery, 
quality assurance, and other processes involved in creating, offering, 
and supporting proposed Historic TRACE Data on an ongoing basis, and an 
assessment of the potential demand for such data. According to FINRA, 
the creation of data products, such as Historic TRACE Data 
products,\21\ involves a series of functions including: creation of 
business requirements, technical specifications, coding, code testing, 
quality assurance, and data retention/storage. The added technical 
processes

[[Page 61191]]

need to be incorporated into routines such as documentation libraries, 
disaster recovery procedures, and escalation procedures. FINRA costs 
include those associated with the drafting of legal subscription 
agreements, product description materials (i.e., user manuals), the 
creation of accounts, and billing. FINRA has stated that, on an ongoing 
basis, it will need to support the product with regards to general and 
specific product inquiries, administration of subscriber agreements, 
customer tracking, billing, and, as the data will be delivered on 
password protected CDs, the physical creation and mailing of CDs.
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    \21\ TRACE Enhanced Historical Time & Sales data is a data 
product in development using Historic TRACE Data.
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    FINRA estimates that the actual number of entities interested in 
purchasing this product, including professional organizations (e.g., 
market data vendors, banks) and Tax-Exempt Organizations (primarily 
academic institutions), is limited to approximately eight to 12 
entities in the first year, and that the revenue collected from the 
sale of Historic TRACE Data will be a small fraction of total revenue. 
The estimated initial demand for the product is anticipated to offset 
the development costs outlined above. Beyond the initial sale of 
Historic TRACE Data, the annual subscription renewals are estimated to 
cover the ongoing administrative costs of supporting the product.
    In Amendment No. 4, FINRA proposed to clarify the limits on the 
restrictions that a Tax Exempt Organization is subject to regarding the 
re-distribution of Historic TRACE Data under proposed Rule 
7730(d)(1)(B)(ii). Specifically, FINRA proposed to correct an 
inadvertent cross-reference to paragraph ``(b)(1)(B)'' to read 
``(d)(1)(B).''
    In addition, in Amendment No. 4, FINRA proposed to amend the 
proposed rule change regarding the announcement and the timing of the 
effective date to link the effective date of the proposed rule change 
to the effective date of SR-FINRA-2009-010. The proposed rule change as 
originally filed provides that FINRA would announce the effective date 
of the proposed rule change in a Regulatory Notice to be published no 
later than 60 days following Commission approval, and the effective 
date would be no later than 90 days following publication of such 
Regulatory Notice.\22\ In Amendment No. 4, FINRA proposed that the 
effective date of the proposed rule change will be announced in a 
Regulatory Notice to be published no later than 150 days following 
Commission approval, and the effective date will be no later than one 
to 30 days following the effective date of SR-FINRA-2009-010.
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    \22\ Statements regarding the timing of FINRA's publication of a 
Regulatory Notice to announce the Commission's approval of the 
proposed rule change and the date of effectiveness are found at 
pages 11, 17 and 35 in the original rule filing.
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IV. Discussion

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities association.\23\ In 
particular, the Commission finds that the proposed rule change is 
consistent with Section 15A(b)(5) of the Act,\24\ which requires, among 
other things, that FINRA rules provide for the equitable allocation of 
reasonable dues, fees, and other charges among members and issuers and 
other persons using any facility or system that FINRA operates or 
controls.
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    \23\ In approving this proposal, the Commission has considered 
the proposed rule's impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f).
    \24\ 15 U.S.C. 78o-3(b)(5).
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    The Commission received one comment on the proposed rule 
change.\25\ The commenter generally was in favor of the fee approach 
proposed by FINRA, noting that fees proposed for Historic TRACE Data 
were ``substantially lower than those for other market data products of 
similar type and complexity.'' \26\ The commenter also supported 
FINRA's proposed ad hoc treatment of Non-Professionals' requests for 
Historic TRACE Data.\27\ The commenter expressed some reservations, 
however, about certain aspects of the proposal. In particular, the 
commenter was concerned that it was unable to verify the fairness of 
the fees and determine if they would be reasonably related to FINRA 
costs.\28\ FINRA responded that the proposed fees were appropriate for 
the reasons it set forth in the proposed rule change and that their 
fairness is not dependent upon the commenter's ability to verify 
FINRA's costs.\29\ FINRA also stated that costs are not necessarily 
determinative of fees' reasonableness.\30\ In Amendment No. 3, however, 
FINRA provided additional information regarding the FINRA business, 
technical, administrative, data recovery, quality assurance, and other 
processes involved in creating, offering, and supporting proposed 
Historic TRACE Data on an ongoing basis, and an assessment of the 
potential demand for such data.
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    \25\ See supra note 4.
    \26\ SIFMA Letter at 1.
    \27\ See id. at 3.
    \28\ See id. at 2.
    \29\ See FINRA Response to Comments at 2.
    \30\ See id.
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    After carefully considering the proposal and the comment submitted, 
the Commission believes that it is reasonable and consistent with the 
Act for FINRA to make Historic TRACE Data available to the public in 
the manner set forth in this proposal. Market participants and 
academics will be able to study more effectively the effects of TRACE 
implementation, while the conditions governing the provision of such 
information appear reasonably designed to prevent public disclosure of 
any market participant's current positions or strategy. FINRA has 
stated that the proposed fees are designed ``to offset the costs of 
developing and maintaining the new Historic TRACE Data database and 
providing such data to vendors, members, and other users,'' with 
reduced fees for qualifying Tax-Exempt Organizations.\31\ In addition, 
the proposed fee for a natural person who makes an ad hoc request for 
historic TRACE data is designed ``to cover the administrative and 
operational costs of responding to such a request'' \32\ and would be 
``comprised solely of the cost of the media and the cost of delivery 
(e.g., U.S. Postal Service or other requested delivery service).'' \33\ 
The Commission believes that the fees proposed herein by FINRA are 
consistent with the Act. However, market data fees with other bases 
could potentially be consistent with the Act. The Commission notes that 
it recently approved a proposal from another self-regulatory 
organization to charge a market data fee on a basis other than 
cost.\34\
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    \31\ Notice, 72 FR at 51690.
    \32\ Id.
    \33\ See Amendment No. 1.
    \34\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21) (Order 
Setting Aside Action by Delegated Authority and Approving Proposed 
Rule Change Relating to NYSE Arca Data).
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    The Commission finds good cause for approving the proposed rule 
change, as modified by Amendment Nos. 1, 2, 3, and 4 thereto, before 
the thirtieth day after the date of publication of notice of filing 
thereof in the Federal Register. Accelerating approval of this proposal 
should benefit investors by facilitating their prompt access to 
Historic TRACE Data, and none of the amendments appear to raise any 
novel or significant regulatory issues. Therefore, the Commission finds 
good cause, consistent with Section 19(b)(2) of the Act, to approve the 
proposal, as modified by Amendment Nos. 1, 2, 3, and 4, on an 
accelerated basis.

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V. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment Nos. 1, 2, 3, and 4, including whether 
Amendment Nos. 1, 2, 3, and 4 are consistent with the Act. Comments may 
be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File No. SR-FINRA-2007-006 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-2007-006. 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 (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for 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 the Exchange. 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-2007-006 and should be 
submitted on or before December 14, 2009.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\35\ that the proposed rule change (File No. SR-FINRA-2007-006), as 
modified by Amendment Nos. 1, 2, 3, and 4 thereto, be, and hereby is, 
approved on an accelerated basis.
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    \35\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant delegated authority.\36\
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    \36\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-28000 Filed 11-20-09; 8:45 am]

BILLING CODE 8011-01-P
