[Federal Register Volume 88, Number 74 (Tuesday, April 18, 2023)]
[Notices]
[Pages 23720-23723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08145]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97291; File No. SR-FINRA-2022-033]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Amendment No. 1 and Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove 
the Proposed Rule Change, as Modified by Amendment No. 1, To Amend the 
Codes of Arbitration Procedure To Make Various Clarifying and Technical 
Changes to the Codes, Including in Response to Recommendations in the 
Report of Independent Counsel Lowenstein Sandler LLP

April 12, 2023.

I. Introduction

    On December 23, 2022, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') filed with the Securities and Exchange Commission 
(``Commission'') proposed rule change SR-FINRA-2022-033 pursuant to 
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange 
Act'') \1\ and Rule 19b-4 \2\ thereunder to amend the Code of 
Arbitration Procedure for Customer Disputes \3\ (``Customer Code'') and 
the Code of Arbitration Procedure for Industry Disputes \4\ (``Industry 
Code'') (together, ``Codes''). The proposed rule change was published 
for public comment in the Federal Register on January 12, 2023.\5\ The 
Commission received five comment letters related to this filing.\6\ On 
February 14, 2023, FINRA consented to an extension of the time period 
in which the Commission must approve the proposed rule change, 
disapprove the proposed rule change, or institute proceedings to 
determine whether to approve or disapprove the proposed rule change to 
April 12, 2023.\7\ On April 11, 2023, FINRA responded to the comment 
letters received in response to the Notice and filed an amendment to 
modify the proposed rule change (``Amendment No. 1'').\8\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See FINRA Rule 12000 Series (Code of Arbitration Procedure 
for Customer Disputes).
    \4\ See FINRA Rule 13000 Series (Code of Arbitration Procedure 
for Industry Disputes).
    \5\ See Exchange Act Release No. 96607 (Jan. 6, 2023), 88 FR 
2144 (Jan. 12, 2023) (File No. SR-FINRA-2022-033) (hereinafter, the 
``Notice'').
    \6\ The comment letters are available at https://www.sec.gov/comments/sr-finra-2022-033/srfinra2022033.htm.
    \7\ See letter from Kristine Vo, Assistant General Counsel, 
Office of General Counsel, FINRA, to Lourdes Gonzalez, Assistant 
Chief Counsel, Division of Trading and Markets, U.S. Securities and 
Exchange Commission (Feb. 14, 2023), available at https://www.finra.org/sites/default/files/2023-02/sr-finra-2022-033-extension-no-1.pdf.
    \8\ See letter from Kristine Vo, Assistant General Counsel, 
Office of General Counsel, FINRA, to Vanessa Countryman, Secretary, 
U.S. Securities and Exchange Commission (Apr. 11, 2023) (``FINRA 
Letter''), available at https://www.sec.gov/comments/sr-finra-2022-033/srfinra2022033-20164047-333995.pdf.
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    The Commission is publishing this order pursuant to Section 
19(b)(2)(B) of the Exchange Act \9\ to solicit comments on the proposed 
rule change, as modified by Amendment No. 1, and to institute 
proceedings to determine whether to approve or disapprove the proposed 
rule change, as modified by Amendment No. 1.
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    \9\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change, as Modified by Amendment 
No. 1

A. Background

    FINRA's Dispute Resolution Services (``DRS'') provides an 
arbitration forum for disputes between customers, member firms, and 
associated persons of member firms.\10\ In general, FINRA arbitrators 
in this forum ``read the pleadings filed by the parties, listen to the 
arguments, study the documentary and/or testimonial evidence, and 
render a decision [on a claim].'' \11\ The Codes \12\

[[Page 23721]]

govern all aspects of claim and case processing, including: initiating 
and responding to claims; appointment, disqualification, and authority 
of arbitrators; prehearing procedures and discovery; and hearings, 
evidence, and closing the record.\13\
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    \10\ See FINRA Rules 12101(a) (Applicability of [Customer] 
Code), 13101(a) (Applicability of [Industry] Code).
    \11\ FINRA, Dispute Resolution Services: Learn About 
Arbitration, https://www.finra.org/arbitration-mediation/learn-about-arbitration.
    \12\ As stated above, FINRA has two Codes of Arbitration 
Procedure. The Customer Code governs a customer's claim about the 
business activities of an individual or entity registered with FINRA 
(e.g., associated persons of member firms). See FINRA Rules 12101 
(Customer Code applies to any dispute between a customer and a 
member or associated person filed under Rules 12200 or 12201), 12200 
(parties must arbitrate disputes about the non-insurance business 
activity of a member or associated person if the customer requests 
arbitration or arbitration is required by written agreement), 12201 
(permits arbitration of disputes about the non-insurance business 
activity of a member or associated person if the parties agree in 
writing to submit to arbitration). The Industry Code governs, for 
the most part, business disputes exclusively among associated 
persons and/or member firms. See FINRA Rules 13101 (Industry Code 
applies to dispute filed under Rules 13200, 13201, or 13202), 13200 
(requires arbitration ``if the dispute arises out of the business 
activities of a member or an associated person and is between or 
among'' members and/or associated persons), 13201 (permits 
arbitration of employment discrimination, whistleblower, and sexual 
misconduct cases), 13202 (requires arbitration if the dispute 
involves the business activity of a registered clearing agency that 
has entered into an agreement to use FINRA's arbitration forum).
    \13\ See FINRA Customer Code (FINRA Rule 12000 Series), Parts 
III-VI; FINRA Industry Code (FINRA Rule 13000 Series), Parts III-VI.
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    Whatever the size of the claim or nature of the dispute, the 
arbitrator-selection process typically follows the same steps for each 
case: (1) the Neutral List Selection System (``NLSS''), a computerized 
list-selection algorithm, randomly generates a list (or lists) of 
arbitrators from FINRA's rosters of eligible arbitrators for the 
selected hearing location for each proceeding; \14\ (2) the Director of 
DRS (hereinafter, the ``Director'') sends the list(s) to the parties; 
\15\ (3) the parties exercise limited strikes to eliminate candidates 
from the list(s); \16\ (4) the parties express preferences by ranking 
the remaining candidates on the list(s); \17\ and (5) the Director 
combines the strike and ranking lists to identify and appoint the 
arbitrator(s).\18\
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    \14\ See FINRA Rules 12402(b) (Generating Lists in Cases with 
One Arbitrator), 12403(a) (Generating Lists in Cases with Three 
Arbitrators), 13403(a) (Lists Generated in Disputes Between 
Members), 13403(b) (Lists Generated in Disputes Between Associated 
Persons or Between or Among Members and Associated Persons); see 
also FINRA Rules 12400(a), 13400(a).
    \15\ See FINRA Rules 12402(c), 12403(b), 13403(c).
    \16\ See FINRA Rules 12402(d)(1) (Striking and Ranking 
Arbitrators in Cases with One Arbitrator), 12403(c)(1)(A) and (2)(A) 
(Striking and Ranking Arbitrators in Cases with Three Arbitrators), 
13404(a) and (b) (Striking and Ranking Arbitrators in Industry 
Disputes).
    \17\ See FINRA Rules 12402(d)(2), 12403(c)(1)(B) and (2)(B), 
13404(c). Parties must deliver their ranked lists to the Director no 
more than 20 days after the date upon which the Director sent the 
lists to the parties. Except for certain individuals proceeding pro 
se, parties must complete and deliver their ranked lists via the DR 
Party Portal (``Portal''). See FINRA Rules 12402(d)(3), 12403(c)(3), 
13404(d). The Portal permits arbitration case participants to, among 
other things, file an arbitration claim, view case documents, submit 
documents to FINRA and send documents to other Portal case 
participants, and schedule hearing dates. See FINRA, Dispute 
Resolution Services: DR Portal,  https://www.finra.org/arbitration-mediation/dr-portal.
    \18\ See FINRA Rules 12402(e) (Combining Lists in Cases with One 
Arbitrators), 12402(f) (Appointment of Arbitrators in Cases with One 
Arbitrator), 12403(d) (Combining Lists in Cases with Three 
Arbitrators), 12403(e) (Appointment of Arbitrators in Cases with 
Three Arbitrators), 13405 (Combining Lists in Industry Disputes), 
13406 (Appointment of Arbitrators in Industry Disputes).
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B. The Proposed Rule Change

    FINRA has proposed to amend the Codes to address the arbitrator 
list-selection process. Specifically, the proposed rule change would:
    (1) Codify current practice \19\ by: (a) requiring the Director to 
manually review the arbitrator list(s) generated by NLSS for any 
conflicts of interest; (b) authorizing the Director to remove an 
arbitrator for such a conflict; and (c) authorizing the Director to 
randomly generate a replacement arbitrator in the event an arbitrator 
is removed,\20\
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    \19\ See Notice at 2144 (describing current practice).
    \20\ Proposed Rules 12402(b)(3), 12403(a)(4), 13403(a)(5), 
13403(b)(5).
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    (2) Codify current practice \21\ by requiring the Director to 
provide the parties with a written explanation of their decision ``to 
grant or deny a party's request to remove an arbitrator . . . ,'' \22\ 
and
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    \21\ See Notice at 2145 (describing current practice).
    \22\ Proposed Rules 12407(c), 13410(c).
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    (3) Expressly authorize the Director to remove an arbitrator for a 
conflict of interest or bias, either upon request of a party or on the 
Director's own initiative, ``[a]fter the Director sends the lists 
generated by the list selection algorithm to the parties, but before 
the first hearing session begins.'' \23\
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    \23\ Proposed Rules 12407(a), 13410(a).
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    The proposed rule change would also amend certain procedural rules 
governing FINRA arbitration cases. Specifically, the proposed rule 
change would:
    (1) Provide that ``prehearing conferences'' will generally be held 
by video and ``hearings'' on the merits will generally be held in 
person, unless ``the parties agree to, or the panel grants a motion 
for, another type of hearing session,'' \24\
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    \24\ Proposed Rules 12500(b), 12501(c), 12504(a)(5), 13500(b), 
13501(c), 13504(a), 12600(b), 13600(b).
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    (2) Provide that any abbreviated hearing (i.e., special proceeding) 
\25\ in a simplified arbitration (i.e., a case involving $50,000 or 
less, exclusive of interest and expenses) \26\ will be held by video, 
unless: (a) the customer requests at least 60 days before the first 
scheduled hearing that it be held by telephone or (b) the parties agree 
to another format,\27\
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    \25\ See FINRA Rules 12800(c)(3)(B), 13800(c)(3)(B) (describing 
special proceedings).
    \26\ See FINRA Rules 12401(a), 13401(a). Simplified Arbitrations 
are governed by FINRA Rule 12800 (Simplified Arbitration) or FINRA 
Rule 13800 (Simplified Arbitration), respectively.
    \27\ Proposed Rules 12800(c)(3)(B)(i), 13800(c)(3)(B)(i).
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    (3) Require parties in simplified arbitrations to redact personal 
confidential information from documents filed with the Director,\28\
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    \28\ Notice at 2146 & n.29 (explaining that FINRA Rules 
1200(d)(1)(C) and 13300(d)(1)(C) would be deleted); proposed Rules 
12300(d)(1), 13300(d)(1).
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    (4) Amend the definition of ``hearing session'' to indicate that, 
during a single day, ``the next hearing session begins after four hours 
of hearing time has elapsed,'' \29\
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    \29\ Proposed Rules 12100(p), 13100(p). FINRA indicated that the 
Codes do not describe the method for determining the number of 
hearing sessions that occurred in a given day in order to calculate 
arbitrator compensation. See Notice at 2146 (indicating that the 
Codes ``do not specify when the next hearing session begins''). 
FINRA stated that currently DRS calculates the total number of 
hearing hours, subtracts any time spent for lunch, and divides the 
remainder by four (as in four hours) to identify the number of 
hearing sessions. See id.
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    (5) Require a respondent filing an answer containing a third-party 
claim to: (a) execute a Submission Agreement \30\ that lists the name 
of the third-party; and (b) file the updated Submission Agreement with 
the Director,\31\
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    \30\ The Codes define the term ``Submission Agreement'' to mean 
the FINRA Submission Agreement ``that parties must sign at the 
outset of an arbitration in which they agree to submit to 
arbitration under the Code.'' FINRA Rules 12100(dd), 13100(ee); see 
Notice at 2146 n.35.
    \31\ Proposed Rules 12303(b), 13303(b).
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    (6) Amend various aspects of the rules governing the filing of 
amended pleadings to, among other things, extend those rules to the 
filing of third-party claims,\32\
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    \32\ Notice at 2147; see proposed Rules 12309, 13309.
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    (7) Amend rules governing when an arbitration panel may decide a 
motion to combine separate but related claims or reconsider the 
Director's previous decision upon a party's motion,\33\
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    \33\ Proposed Rules 12314, 13314.
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    (8) Amend rules governing motions practice to, among other things, 
address the timing of the Director's delivery of pleadings to the 
arbitrator panel,\34\
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    \34\ Notice at 2148 (describing proposed changes); see proposed 
Rules 12503(d), 13503(d) (addressing timing of the Director's 
delivery of pleadings).
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    (9) Expressly provide that any party generating a list of documents 
and other materials prior to the first scheduled hearing may provide 
that list to other parties, but must not combine it with a witness list 
in a single document filed with the Director,\35\
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    \35\ Proposed Rules 12514(a), 13514(a).
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    (10) Amend rules governing hearing records to: (a) identify which 
party must distribute transcripts of the official record; \36\ and (b) 
codify that executive sessions (i.e., private discussions of the 
arbitrator panel) will not be recorded,\37\
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    \36\ Proposed Rules 12606(a)(2), 13606(a)(2), 12606(b)(2), 
13606(b)(2).
    \37\ Proposed Rules 12606(a)(1), 13606(a)(1).

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[[Page 23722]]

    (11) Codify current practice \38\ by permitting a panel to dismiss 
a claim or arbitration without prejudice if it finds insufficient 
service upon a respondent,\39\ and
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    \38\ Notice at 2149 (describing current practice).
    \39\ Proposed Rules 12700(c), 13700(c).
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    (12) Require a panel to issue an ``award'' (i.e., a document 
describing the final disposition of a case) if it grants a motion to 
dismiss all claims after a party's case-in-chief.\40\
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    \40\ Proposed Rules 12504(b), 13504(b).
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    Amendment No. 1 would modify proposed Rules 12314 and 13314 
(``Combining Claims''). Under the Codes, a party may move to join 
multiple claims (i.e., separate but related claims) together in the 
same arbitration if: (1) the claims contain common questions of law or 
fact; and (2) either the claims assert any right to relief jointly and 
severally or the claims arise out of the same transaction or 
occurrence, or series of transactions or occurrences.\41\
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    \41\ See FINRA Rules 12312 (Multiple Claimants), 13312 (Multiple 
Claimants).
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    Before ranked arbitrator lists are due to the Director, the Codes 
permit the Director to combine separate but related claims into a 
single arbitration.\42\ Once a panel has been appointed, the Codes 
permit the panel to reconsider the Director's decision upon a party's 
motion.\43\ But the Codes do not address whether a panel has 
independent authority to combine such claims.\44\ Nor do the Codes 
specify which panel--if more than one has been appointed to hear the 
separate but related claims--may reconsider the Director's previous 
decision.\45\
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    \42\ FINRA Rules 12314, 13314.
    \43\ Id.
    \44\ Notice at 2147.
    \45\ Id.
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    Amendment No. 1 would modify the proposed rule change by amending 
proposed Rules 12314(b) and 13314(b) to provide that ``[i]f a panel has 
been appointed to one or more cases, the panel appointed to the lowest 
numbered case \46\ with a panel'' may combine separate but related 
claims into one arbitration and reconsider the Director's previous 
decision upon a party's motion.\47\
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    \46\ Among cases with a panel, the lowest-numbered case would be 
``the case with the earliest filing date.'' Amendment No. 1; FINRA 
Letter at 7-8.
    \47\ Proposed Rules 12314(b), 13314(b); see Amendment No. 1. 
Amendment No. 1 also deletes proposed Rules 12314(b)(2) and 
13314(b)(2) from the original proposal because FINRA stated that 
those sub-sections are no longer necessary in light of the 
amendment. Id.; see FINRA Letter at 8. In light of that change, 
Amendment No. 1 has re-designated the sub-sections appearing under 
proposed Rules 12314(b) and 13314(b).
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III. Proceedings To Determine Whether To Approve or Disapprove File No. 
SR-FINRA-2022-033 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Exchange Act to determine whether the proposed rule 
change, as modified by Amendment No. 1, should be approved or 
disapproved.\48\ Institution of proceedings is appropriate at this time 
in view of the legal and policy issues raised by the proposed rule 
change, as modified by Amendment No. 1. Institution of proceedings does 
not indicate that the Commission has reached any conclusions with 
respect to the proposed rule change, as modified by Amendment No. 1.
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    \48\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission 
is providing notice of the grounds for disapproval under 
consideration.\49\ The Commission is instituting proceedings to allow 
for additional analysis and input concerning whether the proposed rule 
change, as modified by Amendment No. 1, is consistent with the Exchange 
Act and the rules thereunder.
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    \49\ Id.
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IV. Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposed rule change, as modified by Amendment No. 1. In 
particular, the Commission invites the written views of interested 
persons concerning whether the proposed rule change, as modified by 
Amendment No. 1, is consistent with the Exchange Act and the rules 
thereunder.
    Although there do not appear to be any issues relevant to approval 
or disapproval that would be facilitated by an oral presentation of 
views, data, and arguments, the Commission will consider, pursuant to 
Rule 19b-4, any request for an opportunity to make an oral 
presentation.\50\
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    \50\ Section 19(b)(2) of the Exchange Act, as amended by the 
Securities Acts Amendments of 1975, Public Law 94-29, 89 Stat. 97 
(1975), grants the Commission flexibility to determine what type of 
proceeding--either oral or notice and opportunity for written 
comments--is appropriate for consideration of a particular proposal 
by a self-regulatory organization. See Securities Acts Amendments of 
1975, Report of the Senate Committee on Banking, Housing and Urban 
Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 
30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change, as modified by 
Amendment No. 1, should be approved or disapproved by May 9, 2023. Any 
person who wishes to file a rebuttal to any other person's submission 
must file that rebuttal by May 23, 2023.
    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 [email protected]. Please include 
File No. SR-FINRA-2022-033 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 No. SR-FINRA-2022-033. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change, as modified by 
Amendment No. 1, that are filed with the Commission, and all written 
communications relating to the proposed rule change, as modified by 
Amendment No. 1, between the Commission and any person, other than 
those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of FINRA. All 
comments received will be posted without change. Persons submitting 
comments are cautioned that we do not redact or edit personal 
identifying information from comment submissions. You should submit 
only information that you wish to make available publicly. If comments 
are received, any rebuttal comments should be submitted on or before 
May 23, 2023.


[[Page 23723]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\51\
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    \51\ 17 CFR 200.30-3(a)(12); 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-08145 Filed 4-17-23; 8:45 am]
BILLING CODE 8011-01-P


