
[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85650-85655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28458]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76361; File No. SR-FINRA-2016-043]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing and Immediate Effectiveness of a 
Proposed Rule Change To Provide a Process for an Expedited Proceeding 
and Adopt a Rule To Prohibit Disruptive Quoting and Trading Activity

November 21, 2016.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 \2\ thereunder, notice is hereby given 
that, on November 15, 2016, 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. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to (i) adopt new Supplementary Material to Rule 
5210 to address two specific types of disruptive quoting and trading 
activity, as further described below and (ii) amend the FINRA Rule 9800 
Series to permit FINRA to initiate an expedited proceeding to take 
prompt action for violations of the new Supplementary Material.
    The text of the proposed rule change is available on FINRA's Web 
site at http://www.finra.org, at the principal office of FINRA 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, 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
    FINRA is proposing two rule changes \3\ regarding disruptive 
trading and quoting activity. The first proposed rule change would 
adopt new Supplementary Material .03 to Rule 5210 to define and 
prohibit specific conduct that is deemed disruptive trading and quoting 
activity. The second proposed rule change would amend the Rule 9800 
Series to provide FINRA with the authority to issue, on an expedited 
basis, a permanent cease and desist order against a respondent that 
engages

[[Page 85651]]

in a frequent pattern or practice of the disruptive trading and quoting 
activity in Supplementary Material .03 to Rule 5210. The proposed rule 
change mirrors the framework that Bats BZX Exchange, Inc., formerly 
known as BATS Exchange, Inc. (``BATS''), and The Nasdaq Stock Market 
LLC (``Nasdaq'') have recently adopted, but builds off of FINRA's 
existing process for temporary cease and desist orders (``TCDOs'').\4\ 
FINRA believes that having the authority to issue a cease and desist 
order on an expedited basis to stop certain well-defined disruptive and 
manipulative quoting and trading activity when the activity is 
persistent would significantly enhance FINRA's ability to protect 
investors and market integrity.
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    \3\ The Commission notes that this filing constitutes a single 
``proposed rule change,'' under Section 19(b) of the Act.
    \4\ On February 18, 2016, the SEC approved a proposed rule 
change filed by BATS to adopt new BATS Rule 12.15, which prohibits 
certain types of disruptive quoting and trading activities, and BATS 
Rule 8.17, which permits BATS to conduct a new expedited suspension 
proceeding when it believes BATS Rule 12.15 has been violated. See 
Securities Exchange Act Release No. 77171 (February 18, 2016), 81 FR 
9017 (February 23, 2016) (``BATS Approval Order''); see also 
Securities Exchange Act Release No. 77606 (April 13, 2016), 81 FR 
23026 (April 19, 2016) (adopting identical rules for Bats EDGA 
Exchange, Inc.); Securities Exchange Act Release No. 77602 (April 
13, 2016), 81 FR 23046 (April 19, 2016) (adopting identical rules 
for Bats BYX Exchange, Inc.); Securities Exchange Act Release No. 
77589 (April 12, 2016), 81 FR 22691 (April 18, 2016) (adopting 
identical rules for Bats EDGX Exchange, Inc.). On May 19, 2016, 
Nasdaq filed a substantially similar proposed rule change with the 
SEC for immediate effectiveness. See Securities Exchange Act Release 
No. 77913 (May 25, 2016), 81 FR 35081 (June 1, 2016). Nasdaq has 
similarly extended the rule to other exchanges. See, e.g., 
Securities Exchange Act Release No. 78208 (June 30, 2016), 81 FR 
44366 (July 7, 2016).
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Proposed Disruptive Trading and Quoting Rule
    As a national securities association registered pursuant to Section 
15A of the Act, FINRA is required to be organized and to have the 
capacity to enforce compliance by its members and persons associated 
with its members with, among other things, the Act, the rules and 
regulations thereunder, and FINRA Rules.\5\ Further, FINRA's rules are 
required to be ``designed to prevent fraudulent and manipulative acts 
and practices, to promote just and equitable principles of trade, . . . 
to remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest.'' \6\ In fulfilling these 
requirements, FINRA has developed a comprehensive regulatory program 
that includes automated surveillance of a substantial portion of 
trading activity.\7\ When potentially disruptive, manipulative, or 
otherwise improper quoting and trading activity is identified, FINRA 
staff conducts an investigation into the activity, which often includes 
requesting additional information from the member or members 
involved.\8\ To the extent violations of the Act, the rules and 
regulations thereunder, or FINRA Rules (or the rules of an exchange 
with which FINRA has an RSA) have been identified and confirmed, FINRA 
will commence the enforcement process (either on its own behalf or on 
behalf of a client exchange), which might result in, among other 
things, a censure, a requirement to take certain remedial actions, one 
or more restrictions on future business activities, a monetary fine, or 
a temporary or permanent ban from the securities industry.\9\
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    \5\ See 15 U.S.C. 78o-3(b)(2).
    \6\ 15 U.S.C. 78o-3(b)(6).
    \7\ FINRA conducts, on its own behalf, surveillance of its 
members' trading activity, as well as surveillance for numerous 
national securities exchanges pursuant to Regulatory Services 
Agreements (``RSAs''). FINRA currently has RSAs with 18 different 
exchanges to perform some degree of surveillance. FINRA also 
combines its own data with data received from those exchanges with 
which it has RSAs to conduct cross-market surveillance.
    \8\ See, e.g., Rule 8210.
    \9\ 15 U.S.C. 78o-3(b)(7). See generally Rule 9200 Series.
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    The process described above, from the initial identification of 
potentially disruptive, manipulative, or improper quoting and trading 
activity to a final resolution of the matter, can often take up to 
several years.\10\ FINRA believes that this time period is generally 
necessary and appropriate to ensure that the subject member has a fair 
procedure before a sanction is imposed, particularly in complex cases. 
However, as described below, FINRA believes that there are certain 
clear cases of disruptive and manipulative behavior, or cases where the 
potential harm to investors is so large, that FINRA should have the 
authority to initiate an expedited proceeding to stop the behavior from 
continuing, similar to that which currently exists under the Rule 9800 
Series for issuing TCDOs.
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    \10\ See BATS Approval Order, supra note 4, at 9017.
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    In recent years, several cases have been brought and resolved by 
FINRA and other self-regulatory organizations (``SROs'') that involved 
allegations of wide-spread market manipulation, much of which was 
ultimately being conducted by foreign persons and entities over which 
neither FINRA nor other SROs had direct jurisdiction. In each case, the 
conduct involved a pattern of disruptive quoting and trading activity 
indicative of manipulative layering \11\ or spoofing.\12\ The exchanges 
and FINRA were able to identify the disruptive quoting and trading 
activity in real-time or near real-time; however, due to the procedural 
requirements in existing SRO rules, the members responsible for the 
conduct or responsible for their customers' conduct were able to 
continue the disruptive quoting and trading activity during the 
entirety of the subsequent lengthy investigation and enforcement 
process.\13\ FINRA believes that it should have the authority to 
initiate an expedited proceeding to stop the behavior from continuing 
if a member is engaging in or facilitating certain clear types of 
disruptive quoting and trading activity and the member has received 
sufficient notice with an opportunity to respond, but such activity has 
not ceased.
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    \11\ ``Layering'' is a form of market manipulation in which 
multiple, non-bona fide limit orders are entered on one side of the 
market at various price levels in order to create the appearance of 
a change in the levels of supply and demand, thereby artificially 
moving the price of the security. An order is then executed on the 
opposite side of the market at the artificially created price, and 
the non-bona fide orders are cancelled.
    \12\ ``Spoofing'' is a form of market manipulation that involves 
the market manipulator placing non-bona fide orders that are 
intended to trigger some type of market movement or response from 
other market participants, which the market manipulator is able to 
take advantage of by placing orders on the opposite side of the 
market.
    \13\ For descriptions of two specific examples, see SR-BATS-
2015-101. See also Securities Exchange Act Release No. 75693 (August 
13, 2015), 80 FR 50370, 50371-72 (August 19, 2015).
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    The proposed rule change therefore adds Supplementary Material .03 
to FINRA Rule 5210 (Publication of Transactions and Quotations) to 
explicitly prohibit members from engaging in or facilitating the 
disruptive quoting and trading activities set forth in the rule.\14\ 
The Supplementary Material would prohibit members from engaging in or 
facilitating disruptive quoting and trading activity as defined in the 
rule, including acting in concert with other persons to effect such 
activity. FINRA believes it is necessary to extend the prohibition to 
situations

[[Page 85652]]

when persons are acting in concert to avoid a potential loophole where 
disruptive quoting and trading activity is simply split between several 
firms or customers.
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    \14\ FINRA currently has authority to prohibit and take action 
against manipulative trading activity, including disruptive quoting 
and trading activity, pursuant to its general market manipulation 
rules, including Rules 2010 and 2020. The proposed Supplementary 
Material would define more specifically and prohibit certain types 
of disruptive quoting and trading activity. Violations of the 
Supplementary Material would also provide the basis to apply the 
proposed cease and desist proceeding described below. Combined, 
proposed Supplementary Material .03 to Rule 5210 and the proposed 
amendments to the Rule 9800 Series would provide FINRA with the 
authority to act promptly to prevent the defined types disruptive 
quoting and trading activity from continuing to occur.
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    The proposed rule change defines two types of prohibited activities 
and states that, for purposes of the rule, disruptive quoting and 
trading activity would include a ``frequent pattern or practice'' of 
these activities. As is the case with BATS Rule 12.15, the prohibited 
activities do not include an express intent element.\15\
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    \15\ BATS Rule 12.15 refers to these activities as ``Disruptive 
Quoting and Trading Activity Type 1'' and ``Disruptive Quoting and 
Trading Activity Type 2.''
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     Trading Scenario One: A frequent pattern in which the 
following facts are present: (1) A party enters multiple limit orders 
on one side of the market at various price levels; (2) following the 
entry of the limit orders, the level of supply and demand for the 
security changes; (3) the party enters one or more orders on the 
opposite side of the market that are subsequently executed; and (4) 
following the execution, the party cancels the original limit orders.
     Trading Scenario Two: A frequent pattern in which the 
following facts are present: (1) A party narrows the spread for a 
security by placing an order inside the national best bid and offer and 
(2) the party then submits an order on the opposite side of the market 
that executes against another market participant that joined the new 
inside market established by the party.
    Similar to Interpretation and Policy .02 to BATS Rule 12.15, 
Supplementary Material .03 also makes clear that the order of the 
events indicating the pattern does not change the applicability of the 
rule and that these types of disruptive quoting and trading activity 
can occur regardless of the venue(s) on which the activity is 
conducted.
Proposed Cease and Desist Proceeding
    In addition to the new Supplementary Material describing the 
prohibited trading and quoting activity, the proposed rule change 
provides FINRA with authority to issue, on an expedited basis, a 
permanent cease and desist order (``PCDO'') under FINRA's existing TCDO 
rules for violations of Supplementary Material .03 to FINRA Rule 
5210.\16\
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    \16\ FINRA has existing authority to issue PCDOs. See Rule 9291.
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    Under the current TCDO rules, FINRA can initiate a TCDO proceeding 
under the Rule 9800 Series when respondents are alleged to have 
violated certain specific rules,\17\ and although BATS modeled its 
expedited suspension proceeding rule on FINRA's TCDO rules, there are 
some differences.\18\ Under the proposed rule change, FINRA can issue a 
PCDO under which a respondent to the proceeding would be (1) Ordered to 
cease and desist from the violative activity under Supplementary 
Material .03 to Rule 5210 or (2) ordered to cease and desist from 
providing market access to a client engaged in the violative trading 
activity.\19\
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    \17\ FINRA has the authority to initiate a TCDO for alleged 
violations of Section 10(b) of the Act and Rule 10b-5 thereunder; 
SEA Rules 15g-1 through 15g-9 concerning penny stocks; FINRA Rule 
2010 (Standards of Commercial Honor and Principles of Trade) if the 
alleged violation is unauthorized trading, or misuse or conversion 
of customer assets, or based on violations of Section 17(a) of the 
Securities Act of 1933; FINRA Rule 2020 (Use of Manipulative, 
Deceptive or Other Fraudulent Devices); or FINRA Rule 4330 (Customer 
Protection--Permissible Use of Customers' Securities) if the alleged 
violation is misuse or conversion of customer assets. See FINRA Rule 
9810(a).
    \18\ See Rule 9800 Series. BATS noted in its filing that its 
proposed rule was based in part on FINRA Rules 9810 through 9870. 
See SR-BATS-2015-101. In those instances where the BATS procedural 
rule differs from FINRA's current TCDO process, FINRA believes that 
continuing to follow its existing TCDO process will be more 
efficient and effective than conforming to the BATS rule.
    \19\ Under the current TCDO rules, FINRA must file an underlying 
complaint at the same time it issues a TCDO notice if a complaint 
has not already been filed. See Rule 9810(d). A TCDO remains in 
effect only until the conclusion of the underlying disciplinary 
proceeding. See Rule 9840(c). Under the proposed rule change, as in 
the BATS rule, the PCDO would be permanent, and there would be no 
required underlying disciplinary proceeding. However, the proposed 
rule change would in no way preclude FINRA from pursuing a separate 
disciplinary action for the underlying conduct.
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    The proposed process for issuing a PCDO for violations of 
Supplementary Material .03 to Rule 5210 closely follows the existing 
TCDO procedures in the Rule 9800 Series. Specifically, like a TCDO, 
under the proposed amendments to FINRA's procedural rules, the 
following provisions would apply to a PCDO proceeding for alleged 
violations of the new Supplementary Material .03 to Rule 5210:
     Only FINRA's Chief Executive Officer (or such other senior 
officer as the CEO may designate) may initiate a PCDO proceeding under 
the rule; \20\
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    \20\ See Rule 9810(a). A PCDO proceeding would be initiated only 
after attempts to resolve the conduct with the firm were 
unsuccessful. In approving the BATS rules, the SEC noted that BATS 
represented that it ``will only seek an expedited suspension when--
after multiple requests to a Member for an explanation of [a pattern 
of potentially disruptive quoting and trading] activity--it 
continues to see the same pattern of manipulation from the same 
Member and the source of the activity is the same or has been 
previously identified as a frequent source of disruptive quoting and 
trading activity.'' See BATS Approval Order, supra note 4. FINRA 
anticipates using the proposed PCDO authority in the proposed rule 
change under the same circumstances.
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     The PCDO proceeding is initiated by service of a notice, 
effective upon service, stating whether FINRA is requesting that the 
respondent take action or refrain from certain action, and the notice 
must be accompanied by a declaration of facts, a memorandum of points 
and authorities, and a proposed order containing the required elements 
of an order; \21\
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    \21\ See Rule 9810(a), (b).
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     A hearing is conducted by a Hearing Panel,\22\ and the 
rules include provisions regarding the conduct of the hearing and 
generally require that the hearing be held within 15 days of service of 
the notice initiating the proceeding; \23\
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    \22\ See Rule 9820.
    \23\ See Rule 9830(a).
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     The Hearing Panel must issue a written decision no later 
than ten days after receipt of the hearing transcript; \24\
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    \24\ See Rule 9840(a).
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     The PCDO must set forth the alleged violation and the 
significant market disruption or investor harm that is likely to result 
without the issuance of an order and describe in reasonable detail the 
act or acts the respondent is to take or refrain from taking; \25\
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    \25\ See Rule 9840(a).
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     The PCDO is effective upon service and remains effective 
and enforceable unless modified, set aside, limited, or revoked 
pursuant to the rule; \26\
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    \26\ See Rule 9840, 9850.
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     Any time after the respondent is served with a PCDO, a 
party to the proceeding may apply to the Hearing Panel to have the 
order modified, set aside, limited, or suspended, and the Hearing Panel 
must generally respond to any such request in writing within ten days 
after receipt of the request; \27\
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    \27\ See Rule 9850.
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     FINRA can initiate an expedited proceeding pursuant to 
FINRA Rules 9556 and 9559 for violations of a PCDO; \28\
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    \28\ See Rule 9860, 9556, 9559.
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     Sanctions issued under the rule constitute final and 
immediately effective disciplinary sanctions thus allowing the 
respondent to appeal the PCDO to the SEC; however, filing an 
application for review with the SEC does not stay the effectiveness of 
the PCDO unless the SEC otherwise orders; \29\ and
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    \29\ See Rule 9870.
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     The issuance of the PCDO does not alter FINRA's ability to 
further investigate the matter or later sanction the member pursuant to 
its standard disciplinary process for violations of

[[Page 85653]]

supervisory obligations or other violations of FINRA rules or the Act.
    The proposed rule change does include two notable differences 
between the proposed process for a PCDO for violation of Supplementary 
Material .03 to Rule 5210 and FINRA's existing TCDO process. First, 
under the proposed rule change, a PCDO would be imposed if the Hearing 
Panel finds: (1) By a preponderance of the evidence that the alleged 
violation specified in the notice occurred and (2) that the conduct or 
continuation thereof is likely to result in significant market 
disruption or significant harm to investors. The standard of proof for 
TCDOs is a likelihood of success on the merits, which is a lower 
standard than the preponderance standard.\30\ Second, the permitted 
terms of the order would differ to reflect the nature of Supplementary 
Material .03 to Rule 5210 and, as discussed above, the common 
circumstance where the member is not engaged directly in the activity 
but is facilitating the disruptive quoting or trading activity by 
providing market access to one of its clients. Thus, under the proposed 
rule change a PCDO would be limited to: (1) ordering a respondent to 
cease and desist from violating Supplementary Material .03 to FINRA 
Rule 5210, and/or (2) ordering a respondent to cease and desist from 
providing access to a client of the respondent that is causing 
violations of Supplementary Material .03 to FINRA Rule 5210.
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    \30\ See Rule 9840(a)(1). In 2015, FINRA amended its TCDO 
process to, among other things, change the evidentiary standard for 
TCDOs to a likelihood of success on the merits. See Securities 
Exchange Act Release No. 75629 (August 6, 2015), 80 FR 48379 (August 
12, 2015).
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    Unlike BATS Rule 12.15, under which the respondent is suspended 
unless and until it takes or refrains from taking the act or acts 
described in the suspension order, the proposed rule change, like 
FINRA's current TCDO process, would require a subsequent expedited 
proceeding for violation of the PCDO before a respondent could be 
suspended from FINRA membership. This approach is similar to FINRA's 
existing TCDO authority, and FINRA believes it is preferable given the 
broader impact a FINRA suspension would have on a firm's operations 
versus a suspension by an individual exchange.\31\
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    \31\ Rather than be limited to a full suspension, a separate 
expedited proceeding for violation of a PCDO would also allow for 
the imposition of a wider range of sanctions if the respondent 
requests a hearing. See FINRA Rules 9556, 9559.
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    As noted above, FINRA is proposing to adopt rules substantially 
similar to the BATS rules recently approved by the SEC combined with 
FINRA's existing TCDO rules. Similar to the concerns expressed by BATS 
in its rule filing, FINRA is concerned that it has no expedited means 
by which it can prevent disruptive quoting and trading activity from 
continuing to occur after it has been identified without resorting to a 
formal disciplinary proceeding which can often take years to complete. 
Moreover, during the pendency of a disciplinary proceeding, the conduct 
often continues to take place. By contrast, an expedited proceeding 
like that recently approved for BATS, and similar to the FINRA TCDO 
provisions already in place to prevent ongoing fraud or conversion of 
customer funds, can preclude the activity in a significantly more 
expeditious manner while still ensuring that respondents have adequate 
procedural protections in place.
    The proposed rule change would enhance investor protection and 
market integrity by allowing FINRA to issue PCDOs on an expedited basis 
to stop certain disruptive and manipulative activity and prevent 
ongoing fraud in an expeditious manner. FINRA anticipates that the 
issuance of PCDOs under the proposed rule change would be limited to 
those extreme circumstances where an expedited proceeding is the only 
means by which FINRA can stop ongoing violative conduct.
    FINRA has filed the proposed rule change for immediate 
effectiveness. The implementation date will be 30 days after the date 
of the filing.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\32\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest.
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    \32\ 15 U.S.C. 78o-3(b)(6).
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    Pursuant to the proposal, FINRA will have a mechanism to promptly 
initiate expedited proceedings in the event it believes that it has 
sufficient proof that a violation of Supplementary Material .03 to Rule 
5210 has occurred and is ongoing. FINRA believes the proposed rule 
change would enhance investor protection and market integrity by 
allowing FINRA to issue PCDOs to stop the defined types of disruptive 
and manipulative activity and prevent ongoing fraud in an expeditious 
manner.
    FINRA also believes that the proposal is consistent with the public 
interest, the protection of investors, or otherwise in furtherance of 
the purposes of the Act because the proposal helps to strengthen 
FINRA's ability to carry out its oversight and enforcement 
responsibilities as a self-regulatory organization in cases where 
awaiting the conclusion of a full disciplinary proceeding is unsuitable 
in view of the potential harm to other members and their customers if 
conduct is allowed to continue. As explained above, FINRA notes that, 
like BATS Rule 12.15, it has defined the prohibited disruptive quoting 
and trading activity by modifying the traditional definitions of 
layering and spoofing to eliminate an express intent element. FINRA 
believes this modification is necessary for the protection of investors 
so that ongoing disruptive quoting and trading activity does not occur 
while a more formal disciplinary proceeding is conducted, which can 
take several years to complete. Through this proposal, FINRA does not 
intend to modify the definitions of spoofing and layering that have 
generally been used by FINRA and other regulators in connection with 
actions like those cited above.
    FINRA further believes that the proposal is consistent with Section 
15A(b)(8) of the Act, which requires that the rules of a national 
securities association ``provide a fair procedure for the disciplining 
of members and persons associated with members.'' \33\
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    \33\ 15 U.S.C. 78o-3(b)(8).
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    FINRA believes that following the existing procedures under its 
TCDO rules to issue a PCDO under the proposed rule change provides a 
fair procedure for disciplining members and persons associated with 
members. FINRA recognizes that the proposed rule change lowers the 
threshold necessary to stop activity consistent with the patterns 
described above and potentially suspend, or otherwise sanction, member 
firms engaging in such activity.\34\ FINRA believes that, by following 
its existing TCDO procedures, these risks are mitigated by numerous 
controls in place to assure that cease and desist orders are sought and 
imposed only in appropriate cases. For example, FINRA could impose such 
an order only if the action has been authorized by FINRA's CEO or other

[[Page 85654]]

senior officers designated by the CEO. The proposed rule change also 
ensures the respondents have an opportunity for a hearing prior to the 
imposition of a sanction and an independent Hearing Panel has made 
findings that the standards for issuing the order have been met. 
Moreover, a party subject to a cease and desist order may appeal to the 
SEC.
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    \34\ Consistent with the BATS framework approved by the SEC, the 
proposed rule eliminates an express intent element from the 
definition of prohibited activities, thereby lowering the burden of 
proof necessary to stop these prohibited activities from express 
intent to a ``frequent pattern or practice'' of such activities, 
coupled with the requirement that the conduct is likely to result in 
significant market disruption or significant harm to investors. See 
BATS Approval Order, supra note 4.
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    Finally, FINRA also believes the proposal is consistent with 
Section 15A(h)(1) of the Act,\35\ which requires that the rules of a 
national securities association with respect to a disciplinary 
proceeding: bring specific charges against a member or person 
associated with a member, notify such member or person of and provide 
an opportunity to defend against such charges, keep a record, and 
provide details regarding the findings and applicable sanctions in the 
event a determination to impose a disciplinary sanction is made. FINRA 
believes that each of these requirements is addressed by the notice and 
due process provisions included within its TCDO Rules and the 
amendments proposed thereto. Importantly, as noted above, FINRA 
anticipates using the authority proposed in this filing only in clear 
and egregious cases when necessary to protect investors or other 
members, and even in such cases, the respondent will be afforded a fair 
procedure in connection with the cease and desist proceedings.
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    \35\ 15 U.S.C. 78o-3(h)(1).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. FINRA has undertaken an 
economic impact assessment, as set forth below, to analyze the 
regulatory need for the proposed rulemaking and its potential economic 
impacts, including the anticipated costs and benefits associated with 
the proposed rule change.
Economic Impact Assessment
1. Regulatory Need
    As discussed above, FINRA has developed a comprehensive 
surveillance program that allows it to identify potentially disruptive 
quoting and trading activity almost in real-time. However, under the 
current rules, it can often take FINRA up to several years to stop 
potentially disruptive activity. FINRA believes that there are certain 
clear cases of disruptive activity, or cases where the potential harm 
to investors is so large, in which FINRA should be able to stop the 
disruptive behavior and the associated ongoing investor harm from 
continuing in an expeditious manner. The proposed rule change defines 
and prohibits specific types of disruptive quoting and trading activity 
and gives FINRA the authority to initiate an expedited proceeding and 
issue a PCDO to take prompt action against these potentially harmful 
activities.
2. Anticipated Benefits
    The proposed rule change would enhance investor protection and 
market integrity by allowing FINRA to issue cease and desist orders to 
stop certain disruptive and manipulative activity and prevent ongoing 
fraud or conversion of customer funds in an expeditious manner. FINRA 
anticipates that the issuance of cease and desist orders under the 
proposed rule change would be limited to those extreme circumstances 
where an expedited proceeding is the only means by which FINRA can stop 
ongoing violative conduct. While the expedited proceedings would be 
limited to extreme cases with clear violations, FINRA believes that the 
proposed rule would allow FINRA to initiate and resolve the proceedings 
sooner, in which case the potential benefits can be substantial in just 
a single case where investors are being harmed.
3. Anticipated Costs
    FINRA does not believe that the proposed rule change would impose 
material costs on member firms as the underlying conduct is already 
prohibited by existing rules. Further, FINRA anticipates that any costs 
would likely be minimal relative to the substantial investor protection 
benefits that may arise from just a single case where investors are 
being harmed significantly.
4. Other Economic Impacts
    FINRA recognizes that the proposed rule change lowers the threshold 
necessary to stop activity consistent with the patterns described above 
and suspend member firms engaging in such activity.\36\ Accordingly, in 
developing this proposal, FINRA considered the possibility that the 
lower threshold may result in actions taken against firms for activity 
that is not manipulative. FINRA believes that such risks are mitigated 
by numerous controls in place to assure that cease and desist orders 
are sought and imposed only in appropriate cases. For example, as 
discussed above, FINRA anticipates that it would seek a cease and 
desist order only if it continues to see a frequent pattern of 
potentially manipulative activity from a member, even after making 
multiple requests to that member for an explanation. Similarly, FINRA 
could impose such an order only if the action has been authorized by 
FINRA's CEO or other senior officers designated by the CEO. The 
proposed rule also ensures the respondents have an opportunity for a 
hearing prior to the imposition of a suspension and an independent 
Hearing Panel has made findings that the standards for issuing the 
order have been met. Moreover, a party subject to a cease and desist 
order may appeal to the SEC.
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    \36\ Consistent with the BATS framework approved by the SEC, the 
proposed rule eliminates an express intent element from the 
definition of prohibited activities, thereby lowering the burden of 
proof necessary to stop these prohibited activities from express 
intent to a ``frequent pattern or practice'' of such activities. See 
BATS Approval Order, supra note 4.
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    Similarly, FINRA also considered the possibility that in response 
to the proposed rule, firms may avoid legitimate activities that may be 
appear to fall within the trading scenarios discussed above to avoid 
regulatory and enforcement related costs. If such a response is large, 
it might manifest itself in the provision of liquidity in the relevant 
market. FINRA believes the controls discussed above, particularly those 
associated with providing opportunities to the firms to explain their 
trading strategy prior to any regulatory action, would largely mitigate 
this risk.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \37\ and Rule 19b-
4(f)(6) thereunder.\38\
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    \37\ 15 U.S.C. 78s(b)(3)(A).
    \38\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may

[[Page 85655]]

temporarily suspend 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. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-FINRA-2016-043 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.

All submissions should refer to File Number SR-FINRA-2016-043. 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 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 Web site 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; 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-2016-043 and should be 
submitted on or before December 19, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\39\
Robert W. Errett,
Deputy Secretary.
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    \39\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2016-28458 Filed 11-25-16; 8:45 am]
BILLING CODE 8011-01-P


