
[Federal Register: December 18, 2009 (Volume 74, Number 242)]
[Notices]               
[Page 67284-67285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de09-109]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61160; File No. SR-FINRA-2009-088]

 
Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing and Immediate Effectiveness of 
Proposed Rule Change Relating to Waiver and Credit of Certain FINRA/
Nasdaq Trade Reporting Facility and OTC Reporting Facility Fees

December 14, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on December 7, 2009, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I, II 
and III below, which Items have been prepared by FINRA. FINRA has 
designated the proposed rule change as ``establishing or changing a 
due, fee or other charge'' under Section 19(b)(3)(A)(ii) of the Act \3\ 
and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposal 
effective upon receipt of this filing by the Commission. The Commission 
is publishing this notice to solicit comments on the proposed rule 
change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to waive and issue a credit for fees that were 
charged to FINRA members under FINRA Rules 7620A and 7710 for the 
submission of ``as/of'' trade reports to the FINRA/Nasdaq Trade 
Reporting Facility (``FINRA/Nasdaq TRF'') and the OTC Reporting 
Facility (``ORF''), respectively, for eight days in the months of 
August and September 2009. The proposed rule change does not require 
amendments to any FINRA rules.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. FINRA has prepared summaries, set forth in sections A, 
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Pursuant to FINRA Rules 7620A and 7710, members are charged fees 
for trade reporting to the FINRA/Nasdaq TRF and ORF, respectively, and 
the fee for the submission of late trade reports, including ``as/of'' 
reports, is higher than the fee for the submission of timely trade 
reports. ``As/of'' reports are reports of trades that were executed on 
a date prior to the date they were reported.
    During the months of August and September 2009, various Automated 
Confirmation Transaction Service (``ACT'') technology issues impacted 
trade reporting to the FINRA/Nasdaq TRF and the ORF for a period of 
eight days: August 3, August 4, August 5, August 17, August 21, 
September 16, September 25 and September 28. Due to the ACT technology 
issues, members were unable to report trades on trade date and thus 
incurred higher than normal reporting charges due to the higher number 
of ``as/of'' reports that they were compelled to submit.
    Because the higher charges were the result of an ACT technology 
issue and not the fault of the member, FINRA is proposing to waive the 
fees for ``as/of'' trade reports submitted on each day following the 
day on which the ACT technology issues occurred. Specifically, FINRA 
will waive the ``as/of'' report fees for the following days in 2009: 
August 4, August 5, August 6, August 18, August 24, September 17, 
September 28 and September 29. Members will be issued a credit for the 
``as/of'' trade report fees charged on these dates on a future 
invoice.\5\ FINRA has filed the proposed rule change for immediate 
effectiveness. The operative date will be the date of filing.
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    \5\ FINRA notes that a similar proposal to waive and issue a 
credit for certain cancel fees was the subject of a recent filing by 
NASDAQ OMX PHLX, Inc. See Securities Exchange Act Release No. 60853 
(October 21, 2009), 74 FR 55594 (October 28, 2009) (Notice of Filing 
and Immediate Effectiveness of File No. SR-PHLX-2009-89).
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2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with 
Section 15A(b)(5) of the Act,\6\ 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. 
FINRA believes that the proposed waiver and credit of the ``as/of'' 
reporting fees is fair and equitable in that it will apply uniformly to 
all FINRA members that submitted ``as/of'' trade reports to the FINRA/
Nasdaq TRF and ORF on the designated dates.
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    \6\ 15 U.S.C. 78o-3(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \7\ and paragraph (f)(2) of Rule 19b-4 
thereunder.\8\ At any time within 60 days of the filing of the proposed 
rule change, the Commission may summarily abrogate such rule change if 
it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.
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    \7\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \8\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

[[Page 67285]]

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 Number SR-FINRA-2009-088 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-FINRA-2009-088. 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 FINRA. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make publicly available. All 
submissions should refer to File Number SR-FINRA-2009-088 and should be 
submitted on or before January 8, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-30086 Filed 12-17-09; 8:45 am]

BILLING CODE 8011-01-P
