[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Pages 74253-74258]
[FR Doc No: 2012-30049]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68386; File No. SR-FINRA-2009-060]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of Amendment Nos. 1 and 2, and Order
Granting Accelerated Approval of a Proposed Rule Change, as Modified by
Amendment Nos. 1 and 2, Relating to FINRA Rule 8210 (Provision of
Information and Testimony and Inspection and Copying of Books)

December 7, 2012.

I. Introduction

    On September 10, 2009, the Financial Industry Regulatory Authority,
Inc. (``FINRA'') filed a proposed rule change with the Securities and
Exchange Commission (``SEC'' or ``Commission'') pursuant to Section
19(b)(1) of the Securities Exchange Act of 1934 (``Exchange Act'') \1\
and Rule 19b-4 thereunder \2\ to amend FINRA Rule 8210 (Provision of
Information and Testimony and Inspection and Copying of Books). The
proposed rule change was published for comment in the Federal Register
on October 22, 2009.\3\ The Commission received seven comment letters
on the proposed rule change.\4\ On December 22, 2009, FINRA filed a
letter with the Commission responding to these comments,\5\ and on

December 21, 2011, FINRA filed Amendment No. 1 with the Commission to
further respond to the comments and to propose amendments in response
thereto.\6\ On December 5, 2012, FINRA filed Amendment No. 2 with the
Commission to modify a phrase that was included in Amendment No. 1.\7\
The Commission is publishing this notice and order to solicit comments
on Amendment Nos. 1 and 2 and to approve the proposed rule change, as
modified by Amendment Nos.1 and 2, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 60836 (Oct. 16, 2009), 74 FR
54614 (Oct. 22, 2009) (Notice of Filing of Proposed Rule Change;
File No. SR-FINRA-2009-060) (``Notice'').
    \4\ See letters from BTUD, to Elizabeth Murphy, Secretary, SEC,
dated October 29, 2009 (the ``BTUD Letter''); Frederick T. Greene,
CIMA, Senior V.P., Portfolio Manager, Woodforest Financial Services,
Inc., to Elizabeth M. Murphy, Secretary, SEC, dated October 29, 2009
(the ``Woodforest Letter''); Neal E. Nakagiri, President, CEO, CCO,
NPB Financial Group, LLC, to Elizabeth Murphy, Secretary, SEC, dated
October 29, 2009 (the ``NPB Letter''); Dale E. Brown, CAE, President
& CEO, Financial Services Institute, Inc., to Elizabeth M. Murphy,
Secretary, SEC, dated November 4, 2009 (the ``FSI Letter''); Bari
Havlik, Chief Compliance Officer, Charles Schwab & Co., Inc., to
Elizabeth M. Murphy, Secretary, SEC, dated November 12, 2009 (the
``Schwab Letter''); Ronald C. Long, Director, Regulatory Affairs,
Wells Fargo Advisors, to Elizabeth M. Murphy, Secretary, SEC, dated
November 12, 2009 (the ``Wells Fargo Letter''); and Ira D.
Hammerman, Senior Managing Director and General Counsel, Securities
Industry and Financial Markets Association, to Elizabeth M. Murphy,
Secretary, SEC, dated December 16, 2009 (the ``SIFMA Letter'').
These letters are available on the SEC's Web site at http://www.sec.gov/comments/sr-finra-2009-060/finra2009060.shtml.
    \5\ See letter from Stan Macel, Assistant General Counsel,
Regulatory Policy and Oversight, FINRA, to Elizabeth M. Murphy,
Secretary, SEC, dated December 22, 2009 (``Response to Comments'').
This letter is available on the SEC's Web site at http://www.sec.gov/comments/sr-finra-2009-060/finra2009060.shtml.
    \6\ See Amendment No. 1 dated December 21, 2011 (``Amendment No.
1''). Amendment No. 1 is described below in Section III.B., and the
text of Amendment No. 1 is available on FINRA's Web site at http://www.finra.org, at the principal office of FINRA, and on the
Commission's Web site at http://www.sec.gov/rules/sro.shtml.
    \7\ See Amendment No. 2 dated December 5, 2012 (``Amendment No.
2''). Amendment No. 2 is described below in Section III.B., and the
text of Amendment No. 2 is available on FINRA's Web site at http://www.finra.org, at the principal office of FINRA, and on the
Commission's Web site at http://www.sec.gov/rules/sro.shtml.
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II. Description of the Proposal

    FINRA has proposed to amend FINRA Rule 8210, which confers on FINRA
staff the authority to compel a member, person associated with a
member, or other person over whom FINRA has jurisdiction, to produce
documents, provide testimony, or supply written responses or electronic
data in connection with an investigation, complaint, examination or
adjudicatory proceeding. The proposed rule change would clarify the
scope of FINRA's authority under the rule to inspect and copy the
books, records, and accounts of such member or person, specify the
method of service for certain unregistered persons under the rule, and
authorize service on attorneys who are representing clients.
    FINRA Rule 8210 applies to all members, associated persons, and
other persons over whom FINRA has jurisdiction, including former
associated persons subject to FINRA's jurisdiction as described in the
FINRA By-Laws.\8\ FINRA Rule 8210(c) provides that a member's or
associated person's failure to provide information or testimony or to
permit an inspection and copying of books, records, or accounts is a
violation of the rule.
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    \8\ See FINRA By-Laws, Article V, Section 4(a) (Retention of
Jurisdiction).
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Information in a Member's or Person's Possession, Custody or Control
    FINRA Rule 8210(a)(2) currently provides that FINRA staff shall
have the right to inspect and copy the books, records, and accounts of
all applicable members and persons with respect to any matter involved
in an investigation, complaint, examination or proceeding.\9\ The
proposed rule change would clarify that the information that FINRA
staff shall have the right to inspect and copy must be in the member's
or person's ``possession, custody or control.'' \10\ This language
parallels the Federal Rules of Civil Procedure regarding document
requests and subpoenas for documents.\11\
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    \9\ FINRA Rule 8210(a) provides FINRA adjudicators with the same
rights as FINRA staff to request information. Although the proposed
rule change would also clarify a FINRA adjudicator's authority, no
commenters expressed any concerns that specifically addressed the
powers of FINRA adjudicators.
    \10\ When filing the proposed rule change with the Commission,
FINRA indicated that in using the word ``control,'' in addition to
possession and custody, it intended to require members or persons
covered by the rule to provide, for example, records that they have
the legal right, authority, or ability to obtain upon demand. See
Camden Iron & Metal v. Marubeni Am. Corp., 138 F.R.D. 438, 441
(D.N.J. 1991) (``Federal courts construe `control' very broadly
under [Federal] Rule [of Civil Procedure] 34.''). Moreover, FINRA
indicated that the proposed addition of ``possession, custody or
control'' to Rule 8210(a)(2) would address questions that have
arisen in litigation regarding the scope of the rule. See, e.g., In
re: Jay Alan Ochanpaugh, Exchange Act Release No. 54363 (Aug. 25,
2006) (referred to hereafter as the ``Jay Alan Ochanpaugh'' decision
or litigation).
    \11\ See Fed. R. Civ. P. 34.
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Notice to Associated But Unregistered Persons
    FINRA Rule 8210 addresses the legal concept of service of a written
request by using the term ``notice'' of a request. Currently, FINRA
Rule 8210(d) states that, with respect to members and associated
persons, notice shall be deemed received by the member or associated
person when a copy of the notice is mailed or otherwise transmitted to
the last known relevant address of the member or associated person as
reflected in the Central Registration Depository (``CRD''). The CRD
system contains information concerning registered members and
persons,\12\ but in most instances it does not contain information
concerning unregistered persons who are or were associated with a
member.\13\
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    \12\ Members and registered persons have an affirmative duty to
update CRD with their current address for at least two years after
they have had their registration terminated. See Notice to Members
99-77 (noting that FINRA requests for information and disciplinary
complaints issued during the period of FINRA's retained jurisdiction
will be mailed to a person's last address in FINRA's records).
    \13\ In some limited instances, CRD may contain information
concerning unregistered associated persons who were required to
submit information, including fingerprint information, to CRD in
connection with their employment.
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    Although not routine, some investigations require FINRA examiners
or investigators to request information from persons currently or
formerly associated with a member in an unregistered capacity.\14\ The
current rule is unclear as to what would constitute proper notice on
such persons for whom information is not available in CRD. The proposed
rule change would explicitly address the methods by which notice would
be deemed received by persons currently or formerly associated with a
member in an unregistered capacity.
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    \14\ Persons associated with a member who are unregistered may
include persons exempt from registration, e.g., those whose
functions are solely and exclusively clerical or ministerial; those
whose functions are related solely and exclusively to the member's
need for nominal corporate officers or for capital participation;
and those whose functions are related solely and exclusively to
transactions in municipal securities, transactions in commodities,
or transactions in security futures (provided they are registered
with a registered futures association). See, e.g., NASD Rule
1060(a). For purposes of FINRA Rule 8210, unregistered persons
associated with a member may also include direct owners and
executive officers listed in Schedule A of Form BD of a member whose
job functions do not otherwise require them to register with FINRA.
See FINRA By-Laws, Article I(rr) (definition of ``person associated
with a member'').
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    With respect to unregistered persons currently associated with a
member, the proposed rule change would provide that notice shall be
deemed received by mailing or otherwise transmitting the notice to the
last known business address of the member as reflected in CRD. In
addition, the proposed rule change would retain the provision that if
FINRA staff responsible for transmitting the notice has actual
knowledge that the member's address provided through CRD is out of date
or inaccurate, then a copy of the notice must be transmitted to both
the address provided through CRD, as well as any more current address
known to FINRA staff.
    With respect to unregistered persons formerly associated with a
member, the proposed rule change would provide that notice shall be
deemed received upon personal service, which is defined as set forth in
FINRA Rule 9134(a)(1).\15\ FINRA Rule 9134(a)(1) is based on
traditional concepts for serving a summons under Rule 4 of the Federal
Rules of Civil Procedure.
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    \15\ FINRA Rule 9134(a)(1) provides as follows: ``Personal
service may be accomplished by handing a copy of the papers to the
person required to be served; leaving a copy at the person's office
with an employee or other person in charge thereof; or leaving a
copy at the person's dwelling or usual place of abode with a person
of suitable age and discretion then residing therein[.]''

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Notice to Members and Persons Represented By Counsel
    The proposed rule change would amend FINRA Rule 8210(d) to
explicitly address issues of service on members or persons that are
known to be represented by counsel. Currently, the rule does not
explicitly permit FINRA staff to serve notice on a member's or person's
counsel in situations in which FINRA staff knows that the member or
person is represented by counsel regarding the matter in question. The
proposed rule change would allow FINRA staff to recognize that counsel
can act as an authorized agent on behalf of a member or person. It
would provide that, if FINRA staff knows that a member or person is
represented by counsel regarding the matter in question, then notice
shall be provided to counsel rather than to the member or person. The
proposed rule change would harmonize FINRA's rule in this regard with
Codes of Professional Conduct in many states regarding service on
counsel.\16\
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    \16\ See, e.g., American Bar Association model Rule of
Professional Conduct 4.2 (``ABA Rule 4.2''). ABA Rule 4.2 provides
as follows: ``In representing a client, a lawyer shall not
communicate about the subject of the representation with a person
the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.'' Many states have
rules regarding communication with a person represented by counsel
that are based on ABA Rule 4.2.
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Effective Date
    In its filing with the Commission, FINRA stated that it 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. The effective date would be 30 days following publication of
the Regulatory Notice announcing Commission approval.

III. Summary of Comments, FINRA's Response, and Amendment Nos. 1 and 2

    As stated above, the Commission received seven comment letters in
response to the proposed rule change.\17\ Three commenters supported
the amendments as proposed \18\ and four commenters expressed various
concerns with different aspects of the proposal.\19\ On December 22,
2009, FINRA filed a letter with the Commission responding to these
comments,\20\ and on December 21, 2011, FINRA filed Amendment No. 1
with the Commission to further respond to the comments and to propose
amendments in response thereto.\21\ On December 5, 2012, FINRA filed
Amendment No. 2 with the Commission to modify a phrase that was
included in Amendment No. 1.\22\
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    \17\ See supra note 4.
    \18\ See FSI Letter; NPB Letter; and Woodforest Letter.
    \19\ See BTUD Letter; Schwab Letter; SIFMA Letter; and Wells
Fargo Letter.
    \20\ See Response to Comments, supra note 5.
    \21\ See Amendment No. 1, supra note 6.
    \22\ See Amendment No. 2, supra note 7.
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A. Summary of, and FINRA's Responses to, Comment Letters

1. Information in a Member's or Person's Possession, Custody or Control
    Four commenters addressed FINRA's proposal to amend FINRA Rule
8210(a)(2).\23\ FINRA Rule 8210(a)(2) currently provides that FINRA
staff shall have the right to inspect and copy the books, records and
accounts of all applicable members and persons ``with respect to any
matter involved in the investigation, complaint, examination or
proceeding.'' The proposed rule change would clarify that the
information subject to FINRA inspection and copying must be in the
member's or person's ``possession, custody or control.''
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    \23\ See BTUD Letter; Schwab Letter; SIFMA Letter; and Wells
Fargo Letter.
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    Three commenters expressed concern that FINRA's intent to clarify
the scope of its authority regarding requests pursuant to FINRA Rule
8210 represented an expansion of the current rule without a meaningful
discussion or consideration of the possible legal and practical
implications and consequences for member firms, associated persons, and
persons over whom FINRA has jurisdiction.\24\ These commenters were
particularly concerned that FINRA would be able to compel its members
and persons over whom it has jurisdiction to provide FINRA with
information within the member's or person's ``control.'' In its filing
of the proposed rule change, FINRA stated that it intended for the word
``control,'' in addition to possession and custody, to require members
or persons covered by the rule to provide, for example, records that
they have the legal right, authority, or ability to obtain upon
demand.\25\ In support of their comments, two commenters cited to the
Commission's Jay Alan Ochanpaugh decision, in which the Commission
considered the authority of the NASD (now FINRA) under Rule 8210 in a
litigation context and stated that a ``fuller exploration'' of the
scope of Rule 8210 would be required by the NASD to support its view in
the case that the rule authorized it to obtain information within a
member's or person's possession or control.\26\
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    \24\ See Schwab Letter; SIFMA Letter; and Wells Fargo Letter.
    \25\ See Notice, supra note 3.
    \26\ See Schwab Letter and SIFMA Letter.
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    In its Response to Comments, FINRA stated that commenters were
incorrect in their analysis of the Jay Alan Ochanpaugh litigation.\27\
FINRA noted that although the Commission's decision in that case
addressed both the legal argument that Rule 8210 did not include the
concept of ``possession and control'' and the factual argument that the
NASD failed to prove that the applicant had possession and control of
the documents, the Commission's decision to set aside FINRA's action in
the case was based on factual grounds.\28\ FINRA also noted that the
Exchange Act, not the decision in Jay Alan Ochanpaugh, provides the
standard the Commission uses when analyzing a self-regulatory
organization's proposed rule change.\29\ FINRA further argued that the
purpose of proposed FINRA Rule 8210 is to facilitate investigations and
that the consequences or burdens of any particular request are
factually specific to that investigation.\30\
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    \27\ See Response to Comments, supra note 5.
    \28\ Id.
    \29\ Id. See also Section 19(b)(2)(C) of the Exchange Act, which
states that the Commission shall approve a proposed rule change of a
self-regulatory organization ``if it finds that such proposed rule
change is consistent with the requirements of this title and the
rules and regulations issued under this title that are applicable to
such organization.''
    \30\ See Response to Comments, supra note 5.
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2. Issues Regarding Access to Third-Party Documents and Procedural
Protections

    Three commenters raised concerns that the proposed rule change
could permit FINRA to compel members or associated persons to produce
documents that belong to a third party.\31\ For example, two commenters
expressed concern that FINRA would not be required to maintain
confidentiality of third party documents it receives pursuant to a Rule
8210 request, which could be made public when attached to pleadings in
court filings, when sought by another party pursuant to a subpoena, and
when disclosed pursuant to Freedom of Information Act requests.\32\ One
of these commenters expressed further concern that public disclosure of
confidential or proprietary third party documents as a result of the
proposed rule change may result in the owner of the documents suffering
material harm, which, in turn, could prompt the owner of the records

to seek damages or other recourse from FINRA and the member firm for
publicly disclosing the information.\33\
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    \31\ See Schwab Letter; SIFMA Letter; and Wells Fargo Letter.
    \32\ See Schwab Letter and SIFMA Letter.
    \33\ See Schwab Letter.
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    To address these concerns, one commenter recommended that FINRA's
right to demand possession, custody, or control of third party records
should be limited to when an associated person is acting in its
capacity as an associated person.\34\ This commenter also stated that
FINRA should access documents of third parties through subpoenas to
provide third parties with a means of addressing their issues against
the production of their documents and to help protect member firms
against claims of improper disclosure.\35\
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    \34\ See Wells Fargo Letter.
    \35\ Id.
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    One commenter stated that FINRA's proposal does not address issues
relating to the ownership of records where FINRA is seeking records of
a third party not within FINRA's jurisdiction.\36\ For example,
according to this commenter, an unrelated third party may own and have
absolute control over the material requested, while the person or
entity over whom FINRA has jurisdiction may have limited access to the
documents or only the right to request the documents from the third
party for a specific purpose consistent with their role in the
organization or relationship with the third party.\37\ The commenter
believes that this may result in the member firm breaching contractual
obligations owed to the third party and potentially result in a
violation of Rule 8210.\38\ Another commenter expressed concern that
under the proposed rule change, regulators could rely on the subject of
an investigation to supply information related to third parties as
opposed to independently obtaining those records from the third
party.\39\
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    \36\ See Schwab Letter.
    \37\ Id.
    \38\ Id.
    \39\ See Wells Fargo Letter.
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    Two commenters expressed concern about the procedural protections
of which FINRA members may avail themselves when in receipt of a Rule
8210 request for information.\40\ These commenters stated that,
although the rule seeks to adopt the same standard found in the Federal
Rules of Civil Procedure, FINRA members may not receive the same
procedural protections as those found in federal court, such as the
right to object to the production of requested documents.\41\ These
commenters also stated that if a FINRA member cannot comply with a
request under Rule 8210, and the firm is found to have violated the
rule, the procedural process to appeal to the SEC and federal courts is
long and arduous.\42\
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    \40\ See Schwab Letter and SIFMA Letter.
    \41\ Id.
    \42\ Id.
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    FINRA believes that the concerns described above relating to issues
regarding access to third party documents and procedural protections
incorrectly assume that FINRA's investigations into the conduct of its
members and associated persons are strictly limited in scope to the
FINRA members and associated persons under investigation.\43\ FINRA
stated that although it has jurisdiction to file an action against its
members and associated persons (and those otherwise subject to its
jurisdiction), its investigations can involve non-FINRA members,
including customers, issuers, or foreign businesses.\44\ Consequently,
FINRA contends that third party documents within the ``possession,
custody or control'' of the FINRA member or associated person that
relate to the investigation should be produced pursuant to proposed
FINRA Rule 8210 and concerns solely based on their status as third
party documents should not prevent the Commission from approving the
proposed rule change.\45\
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    \43\ See Response to Comments, supra note 5.
    \44\ Id.
    \45\ Id.
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    FINRA agrees in part that its authority to request documents is
contractual. However, FINRA notes that its authority is also based on
its rules applying to all members and their associated persons.\46\
FINRA states that, in light of these relationships, its investigations
are based on a model of implied cooperation as opposed to the
adversarial system that is governed by the Federal Rules of Civil
Procedure.\47\ Specifically, FINRA's members and persons subject to its
jurisdiction have already agreed, either explicitly or implicitly, to
supply FINRA with information during its investigations.\48\ FINRA
notes that once an investigation has matured into the filing of a
complaint, the FINRA Code of Procedure affords a respondent several
procedural rights and that its investigatory process should not be
fundamentally altered as a result of the proposed rule change.\49\
FINRA also notes that the current rule provides FINRA staff with the
right to inspect and copy books, records, and accounts of members,
associated persons and others subject to FINRA's jurisdiction ``with
respect to any matter involved in the investigation, complaint,
examination or proceeding,'' and because the rule is purposefully
designed to cover a broad range of activities, concerns about limiting
the scope of the rule are misplaced.\50\
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    \46\ Id.
    \47\ Id.
    \48\ Id.
    \49\ Id.
    \50\ Id.
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3. Participation in Charitable, Non-Profit, and Board Service
    Three commenters indicated that FINRA Rule 8210(a)(2), as proposed
to be amended, may inhibit or discourage individuals in the securities
industry from participating in charitable, non-profit, and board
service due to the potential for third party organizations to have to
provide private or confidential documents owned by the organization to
FINRA.\51\ FINRA responded that it did not find merit in the suggestion
by these commenters that adopting the ``possession, custody or
control'' language in FINRA Rule 8210(a)(2) would chill the likelihood
of associated persons participating in non-profit entities due to fear
by those entities that their documents would be disclosed during FINRA
investigations.\52\ FINRA stated further that in as much as board
members of non-profit organizations often are employed in a for-profit
industry, FINRA found no greater likelihood that a non-profit
corporation's confidential information would be disclosed because they
have associated persons as board members than if their board members
were not associated with the securities industry.\53\
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    \51\ See Schwab Letter; SIFMA Letter; and Wells Fargo Letter.
    \52\ See Response to Comments, supra note 5.
    \53\ Id.
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4. Additional Analysis and Consideration of the Proposed Rule Change
    Two commenters recommended that FINRA engage in additional analysis
and consideration with respect to the proposed rule change and the
process and protections afforded to members, associated persons, and
others over whom FINRA has jurisdiction.\54\ FINRA did not directly
respond to these recommendations; however, FINRA's Response to Comments
and its filing of Amendment Nos. 1 and 2, which, as discussed below,
limit the scope of the proposed rule change, reflect FINRA's efforts to
engage in such additional analysis and consideration of the proposed
rule change.
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    \54\ See Schwab Letter and SIFMA Letter.

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5. Notice to Unregistered Persons and Members and Persons Represented
by Counsel
    FINRA did not receive any specific comments on its proposals under
Rule 8210(d) to specify the method of service for certain unregistered
persons and to authorize service on members or persons that are known
to be represented by counsel.
6. Comment Outside the Scope of the Proposed Rule Change
    One commenter expressed concern regarding a witness's ability to
access a written transcript of on-the-record testimony in a FINRA
proceeding.\55\ FINRA responded that this comment is outside the scope
of the proposed rule change.\56\
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    \55\ See BTUD Letter.
    \56\ See Response to Comments, supra note 5.
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B. Description of Amendment Nos. 1 and 2

    After further consideration and analysis of the proposed rule
change and the comments thereon, on December 21, 2011, FINRA filed
Amendment No. 1, in which it proposed to add Supplementary Material
limiting the scope of its proposal.\57\ On December 5, 2012, FINRA
filed Amendment No. 2 to modify a phrase in the proposed Supplementary
Material.\58\
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    \57\ See Amendment No. 1, supra note 6.
    \58\ See Amendment No. 2, supra note 7.
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    First, the proposed Supplementary Material would provide that
books, records and accounts of a broker-dealer, associated person or
person subject to FINRA's jurisdiction (as referenced in Rule 8210(a)),
would include those books, records and accounts that the broker-dealer
or its associated persons would make or keep relating to its operation
as a broker-dealer or relating to the person's association with the
member.\59\ This would include, but not be limited to, investigations
of outside business activities, private securities transactions, or
possible violations of just and equitable principles of trade, as well
as other FINRA rules, MSRB rules, and the federal securities laws.\60\
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    \59\ Id.
    \60\ Id.
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    The proposed Supplementary Material also would clarify that books,
records and accounts of a broker-dealer, associated person or person
subject to FINRA's jurisdiction would not ordinarily include books and
records that are in the possession, custody or control of a member or
associated person, but whose bona fide ownership is held by an
independent third party and the records are unrelated to the business
of the member.\61\
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    \61\ Id.
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    Finally, the proposed Supplementary Material would provide that a
FINRA member, associated person, or person subject to FINRA's
jurisdiction must make available its books, records or accounts when
these books, records or accounts are in the possession of another
person or entity, such as an attorney, accountant, or other
professional service provider, but the FINRA member, associated person,
or person subject to FINRA's jurisdiction controls or has a right to
demand them.\62\
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    \62\ Id. Amendment No. 1 also makes a technical change to the
text of Rule 8210 to reflect the addition of paragraph (g) to the
Rule, which was added through a separate and unrelated intervening
proposed rule change that was submitted and became effective
subsequent to the filing of this proposal. See Exchange Act Release
No. 63016 (Sep. 29, 2010), 75 FR 61793 (Oct. 6, 2010) (Order
Approving Proposed Rule Change; File No. SR-FINRA-2010-021). This
change has no effect on the text of Rule 8210(g), which requires the
encryption of certain information provided via portable media
device. Id.
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IV. Discussion and Commission Findings

    The Commission has carefully considered the proposed rule change,
as modified by Amendment Nos. 1 and 2, the comment letters received,
and FINRA's response and finds that the proposed rule change, as
modified by Amendment Nos. 1 and 2, is consistent with the requirements
of the Exchange Act and the rules and regulations thereunder that are
applicable to a national securities association.\63\ In particular, the
Commission finds that the proposed rule change, as modified by
Amendment Nos. 1 and 2, is consistent with Section 15A(b)(6) of the
Exchange Act, which requires, among other things, that the rules of a
national securities association be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, remove impediments to and perfect the mechanism of
a free and open market and a national market system, and, in general,
protect investors and the public interest.\64\ The Commission believes
that FINRA, in its Response to Comments and Amendment Nos. 1 and 2,
adequately addressed the comments raised in response to the Notice.
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    \63\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \64\ 15 U.S.C. 78o-3(b)(6).
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    Current FINRA Rule 8210 confers on FINRA staff authority to compel
a member, person associated with a member, or other person subject to
FINRA's jurisdiction, to produce documents, provide testimony, or
supply written responses or electronic data in connection with an
investigation, complaint, examination or adjudicatory proceeding.
Additionally, the current rule provides FINRA with the authority to
inspect and copy the books, records, and accounts of all applicable
members and persons with respect to any matter involved in the
investigation, complaint, examination, or proceeding. FINRA's proposed
rule, as modified by Amendment Nos. 1 and 2, clarifies that information
subject to a FINRA Rule 8210 request must be in the member's or
person's ``possession, custody or control'' and explicitly provides the
methods by which certain types of notice must be made. These changes
will help eliminate existing confusion with respect to the scope of
FINRA Rule 8210. The proposed rule change, as modified by Amendment
Nos. 1 and 2, also will further the purposes of the Exchange Act by,
among other things, clarifying and streamlining the requirements
surrounding providing information and testimony and inspecting and
copying books and records. The clarifying nature of the proposed rule,
as modified by Amendment Nos. 1 and 2, will be helpful to FINRA members
in understanding the scope of, and notice requirements under, Rule
8210, and will assist FINRA in facilitating investigations and
fulfilling its responsibilities as a self-regulatory organization under
the Exchange Act.

V. Accelerated Approval

    The Commission finds goods cause, pursuant to Section 19(b)(2) of
the Act,\65\ for approving the proposed rule change, as modified by
Amendment Nos. 1 and 2, prior to the 30th day after publication of
Amendment Nos. 1 and 2 in the Federal Register. The changes proposed in
Amendment Nos. 1 and 2 respond to specific concerns raised by
commenters and do not raise novel regulatory concerns. In particular,
Amendment Nos. 1 and 2 clarify the scope of FINRA Rule 8210 and FINRA's
authority to inspect and copy the books, records and accounts of
members and persons with respect to any matter involved in an
investigation, complaint, examination, or proceeding. The proposed
rule, as modified by Amendment Nos. 1 and 2, also furthers FINRA's
investor protection mandate.
---------------------------------------------------------------------------

    \65\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

    Accordingly, the Commission finds that good cause exists to approve
the

proposal, as modified by Amendment Nos. 1 and 2, on an accelerated
basis.

VI. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether Amendment Nos. 1
and 2 to the proposed rule change are consistent with the Exchange 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<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2009-060 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-2009-060. 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
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 available publicly. All
submissions should refer to File Number SR-FINRA-2009-060 and should be
submitted on or before January 3, 2013.

VII. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\66\ that the proposed rule change (SR-FINRA-2009-060), as modified
by Amendment Nos. 1 and 2, be, and hereby is, approved on an
accelerated basis.
---------------------------------------------------------------------------

    \66\ 15 U.S.C. 78(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\67\
---------------------------------------------------------------------------

    \67\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-30049 Filed 12-12-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Rules and Regulations]
[Pages 45414-45416]
[FR Doc No: 2016-16711]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0267]
RIN 1625-AA00

Safety Zone; Tall Ships Challenge Great Lakes 2016, Fairport
Harbor, OH, Bay City, MI, Chicago, IL, Green Bay, WI, Duluth, MN, Erie,
PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is creating temporary safety zones around each
tall ship visiting the Great Lakes during the Tall Ships Challenge 2016
race series. These safety zones will provide for the regulation of
vessel traffic in the vicinity of each tall ship in the navigable
waters of the United States. The Coast Guard is taking this action to
safeguard participants and spectators from the hazards associated with
the limited maneuverability of these tall ships and to ensure public
safety during tall ships events.

DATES: This rule is effective without actual notice from July 14, 2016
through 12:01 a.m. on September 12, 2016. For the purposes of
enforcement, actual notice will be used from 12:01 a.m. July 6, 2016
through July 14, 2016.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0267 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mark Bobal, Ninth District Inspections and Investigations
Branch, Passenger Vessel Safety Specialist, U.S. Coast Guard; telephone
216-902-6052, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    During the Tall Ships Challenge Great Lakes 2016, tall ships will
be participating in parades and then mooring in the harbors of Fairport
Harbor, OH, Bay City, MI, Chicago, IL, Green Bay, WI, Duluth, MN, Erie,
PA. This is a tri-annual event that teaches character building and
leadership through sail training. The Tall Ships event seeks to educate
the public about both the historical aspects of sailing ships as well
as their current use as training vessels for students. Tall ships are
large, traditionally-rigged sailing vessels. The event will consist of
festivals at each port of call, sail training cruises, tall ship
parades, and races between the ports. More information regarding the
Tall Ships Challenge 2016 and the participating vessels can be found at
http://www.sailtraining.org/tallships/2016greatlakes/TSC2016index.php
    The Coast Guard published a notice of proposed rulemaking (NPRM)
titled Safety Zone; Tall Ships Challenge Great Lakes 2016, Fairport
Harbor, OH, Bay City, MI, Chicago, IL, Green Bay, WI, Duluth, MN, Erie,
PA (USCG-2016-0267, 81 FR 26767, May 4, 2016). There we stated why we
issued the NPRM, and invited comments on our proposed regulatory action
related. During the comment period that ended June 3, 2016, we received
one comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Ninth District Commander has determined that potential
hazards associated with tall ships operating in crowded harbors in
close proximity to spectator craft necessitate a safety zone. The
purpose of this rule is to ensure the safety of all vessels during the
Tall Ship events.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comments on our NPRM published May
4, 2016. The comment was directed at a rule pertaining to a fireworks
show

during a university graduation and did not apply to this rule. There
are no changes in the regulatory text of this rule from the proposed
rule in the NPRM.
    This rule establishes a safety zone from 12:01 a.m. July 6, 2016,
that is established around each Tall Ship participating in this event.
The safety zone covers all navigable waters within 100 yards of a tall
ship in the Great Lakes. The duration of the zone is intended to ensure
the safety of vessels and these navigable waters during the 2016 Tall
Ships Challenge. No vessel or person will be permitted to enter the
safety zone without obtaining permission from the COTP or a designated
representative. If the tall ships are operating in a confined area such
as a small harbor and there is not adequate room for vessels to stay
out of the safety zone because of a lack of navigable water, then
vessels will be permitted to operate within the safety zone and shall
travel at the minimum speed necessary to maintain a safe course. The
navigation rules apply at all times within the safety zone. The safety
zone terminates at 12:01 a.m. on September 12, 2016.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has not been designated
a ``significant regulatory action,'' under Executive Order 12866.
Accordingly, it has not been reviewed by the Office of Management and
Budget.
    This regulatory action determination is based on the size,
location, duration, and time-of-day of the safety zone. Vessel traffic
will be able to safely transit around this safety zone. Commercial
traffic does not typically come within the boundaries of the safety
zone, and would be permitted to pass through the safety zone in
accordance with the rule. Moreover, the Coast Guard will issue
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the
zone and the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard received no comments from the Small Business
Administration on this rulemaking. The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule involves a safety zone that will prohibit vessels from passing
within 100 yards of a tall ship without coming to a slow speed. It is
categorically excluded from further review under paragraph 34(h) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a

Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES. We seek any comments or information that may
lead to the discovery of a significant environmental impact from this
rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.T09-0073 to read as follows:

Sec.  165.T09-0073  Safety Zone; Tall Ships Challenge Great Lakes 2016;
Fairport Harbor, OH, Bay City, MI, Chicago, IL, Green Bay, WI, Sturgeon
Bay, WI, Duluth, MN, Erie, PA.

    (a) Definitions. The following definitions apply to this section:
    (1) Navigation Rules means the Navigation Rules, International and
Inland (See, 1972 COLREGS and 33 U.S.C. 2001 et seq.).
    (2) Official Patrol means those persons designated by Captain of
the Port Buffalo, Detroit, Sault Ste. Marie, Duluth and Lake Michigan
to monitor a tall ship safety zone, permit entry into the zone, give
legally enforceable orders to persons or vessels within the zone, and
take other actions authorized by the cognizant Captain of the Port.
    (3) Public Vessel means vessels owned, chartered, or operated by
the United States or by a State or political subdivision thereof.
    (4) Tall Ship means any sailing vessel participating in the Tall
Ships Challenge 2016 in the Great Lakes.
    (b) Location. The following areas are safety zones: all navigable
waters of the United States located in the Ninth Coast Guard District
within a 100 yard radius of any tall ship.
    (c) Regulations. (1) No person or vessel is allowed within the
safety zone unless authorized by the cognizant Captain of the Port,
their designated representative, or the on-scene official patrol.
    (2) Persons or vessels operating within a confined harbor or
channel, where there is not sufficient navigable water outside of the
safety zone to safely maneuver are allowed to operate within the safety
zone and shall travel at the minimum speed necessary to maintain a safe
course. Vessels operating within the safety zone shall not come within
25 yards of a tall ship unless authorized by the cognizant Captain of
the Port, their designated representative, or the on-scene official
patrol.
    (3) When a tall ship approaches any vessel that is moored or
anchored, the stationary vessel must stay moored or anchored while it
remains within the tall ship's safety zone unless ordered by or given
permission from the cognizant Captain of the Port, their designated
representative, or the on-scene official patrol to do otherwise.
    (d) Effective period. This rule is effective from 12:01 a.m. on
Wednesday, July 6, 2016 through 12:01 a.m. on Monday, September 12,
2016.
    (e) Navigation Rules. The Navigation Rules shall apply at all times
within a tall ships safety zone.

    Dated: July 5, 2016.
J.E. Ryan,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2016-16711 Filed 7-13-16; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Pages 4403-4405]
[FR Doc No: 2011-1434]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63729; File No. SR-FINRA-2011-003]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of
Proposed Rule Change Extending the Pilot Period Regarding the Use of
Multiple MPIDs on FINRA Facilities

January 18, 2011.
    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 January 5, 2011, 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 and
II below, which Items have been prepared by FINRA. FINRA has designated
the proposed rule change as constituting a ``non-controversial'' rule
change under paragraph (f)(6) of Rule 19b-4 under the Act,\3\ 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing a rule change to extend through January 27,
2012, the current rules regarding the use of multiple Market
Participant Symbols (``MPIDs'') in FINRA Rules 6160 (with respect to
Trade Reporting Facilities (``TRFs'')), 6170 (with respect to the
Alternative Display Facility (``ADF'')), and 6480 (with respect to the
OTC Reporting Facility (``ORF'')).
    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 has three rules governing the use of multiple MPIDs on FINRA
facilities: Rule 6160 (Multiple MPIDs for Trade Reporting Facility
Participants), Rule 6170 (Primary and Additional MPIDs for Alternative
Display Facility Participants), and Rule 6480 (Multiple MPIDs for
Quoting and Trading in OTC Equity Securities). The pilot period for all
three rules is scheduled to expire on January 28, 2011. FINRA believes
that there continue to be legitimate business reasons for members to
maintain multiple MPIDs for use on FINRA facilities. Consequently,
FINRA is proposing to extend the pilot period for each of the three
rules until January 27, 2012. FINRA is not proposing any other changes
to the rules at this time; however, FINRA notes that it intends to file
a proposed rule change within the next year that amends the rules
governing multiple MPIDs, including a proposed rule change to make the
rules permanent.
(1) Rule 6160
    Rule 6160 provides that any Trade Reporting Facility Participant
that wishes to use more than one MPID for purposes of reporting trades
to a TRF must submit a written request to, and obtain approval from,
FINRA Operations for such additional MPIDs. In addition, Supplementary
Material to the rule states that FINRA considers the issuance of, and
trade reporting with, multiple MPIDs to be a privilege and not a right.
A Trade Reporting Facility Participant must identify the purpose(s) and
system(s) for which the multiple MPIDs will be used. If FINRA
determines that the use of multiple MPIDs is detrimental to the
marketplace, or that a Trade Reporting Facility Participant is using
one or more additional MPIDs improperly or for other than the
purpose(s) identified by the Participant, FINRA staff retains full
discretion to limit or withdraw its grant of the additional MPID(s) to
such Trade Reporting Facility Participant for purposes of reporting
trades to a TRF. FINRA believes that Rule 6160 is necessary to
consolidate the process of issuing, and tracking the use of, multiple
MPIDs used to report trades to TRFs.
    Rule 6160 was approved by the Commission in 2006 on a pilot
basis.\4\ The pilot period has been extended several times since the
rule was originally adopted and currently expires on January 28,
2011.\5\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 54715 (November 6,
2006), 71 FR 66354 (November 14, 2006); see also Securities Exchange
Act Release No. 54715A (November 14, 2006), 71 FR 67183 (November
20, 2006).
    \5\ See Securities Exchange Act Release No. 61297 (January 6,
2010), 75 FR 2173 (January 14, 2010); Securities Exchange Act
Release No. 59183 (December 30, 2008), 74 FR 842 (January 8, 2009);
Securities Exchange Act Release No. 57217 (January 28, 2008), 73 FR
6234 (February 1, 2008); Securities Exchange Act Release No. 55206
(January 31, 2007), 72 FR 5479 (February 6, 2007).
---------------------------------------------------------------------------

(2) Rule 6170
    Rule 6170 provides that a Registered Reporting ADF ECN may request
additional MPIDs for displaying quotes and orders and reporting trades
through the ADF trade reporting facility, TRACS, for any ADF-Eligible
Security. Among other things, Registered Reporting ADF ECNs are
prohibited from using an additional MPID to accomplish indirectly what
they are prohibited from doing directly through their Primary MPID. In
addition, FINRA staff retains full discretion to determine whether a
bona fide regulatory and/or business need exists for being granted an
additional MPID privilege and to limit or withdraw the additional MPID
display privilege at any time. The procedures for requesting, and the
restrictions surrounding the use of, multiple MPIDs are set forth in
Supplementary Material to the rule.
    The Commission approved Rule 6170 on a pilot basis on August 11,
2006.\6\ The pilot period has been extended several times since the
rule was

originally adopted and currently expires on January 28, 2011.\7\
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 54307 (August 11,
2006), 71 FR 47551 (August 17, 2006). By its terms, the initial
pilot period expired on January 26, 2007, to coincide with the
expiration of the ADF pilot period. See Securities Exchange Act
Release No. 53699 (April 21, 2006), 71 FR 25271 (April 28, 2006). On
January 26, 2007, the Commission approved a proposed rule change to
make the ADF rules permanent. See Securities Exchange Act Release
No. 55181 (January 26, 2007), 72 FR 5093 (February 2, 2007).
    \7\ See Securities Exchange Act Release No. 61297 (January 6,
2010), 75 FR 2173 (January 14, 2010); Securities Exchange Act
Release No. 59183 (December 30, 2008), 74 FR 842 (January 8, 2009);
Securities Exchange Act Release No. 57217 (January 28, 2008), 73 FR
6234 (February 1, 2008); Securities Exchange Act Release No. 55206
(January 31, 2007), 72 FR 5479 (February 6, 2007).
---------------------------------------------------------------------------

(3) Rule 6480
    Like Rule 6160, Rule 6480 provides that any member that wishes to
use more than one MPID for purposes of quoting an OTC Equity Security
or reporting trades to the ORF must submit a written request to, and
obtain approval from, FINRA Operations for such additional MPIDs. The
rule also states that a member that posts a quotation in an OTC Equity
Security and reports to a FINRA system a trade resulting from such
posted quotation must utilize the same MPID for reporting purposes. In
addition, Supplementary Material to the rule states that FINRA
considers the issuance of, and trade reporting with, multiple MPIDs to
be a privilege and not a right. When requesting an additional MPID(s),
a member must identify the purpose(s) and system(s) for which the
multiple MPIDs will be used. If FINRA determines that the use of
multiple MPIDs is detrimental to the marketplace, or that a member is
using one or more additional MPIDs improperly or for purposes other
than the purpose(s) identified by the member, FINRA staff retains full
discretion to limit or withdraw its grant of the additional MPID(s) to
such member.
    FINRA adopted Rule 6480 on a pilot basis on July 23, 2009.\8\ The
pilot period was extended and expires on January 28, 2011.\9\
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 60414 (July 31,
2009), 74 FR 39721 (August 7, 2009).
    \9\ See Securities Exchange Act Release No. 61297 (January 6,
2010), 75 FR 2173 (January 14, 2010).
---------------------------------------------------------------------------

    FINRA has filed the proposed rule change for immediate
effectiveness. The implementation date of the proposed rule change will
be January 28, 2011.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\10\ 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. FINRA believes that the proposed rule change is
consistent with these requirements because it will provide a process by
which members can request, and FINRA can properly allocate, the use of
additional MPIDs for displaying quotes and orders through the ADF or
reporting trades to a TRF or the ORF.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

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.

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\11\ and Rule 19b-
4(f)(6) thereunder.\12\
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may 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. FINRA has provided
the Commission written notice of its intent to file the proposed rule
change, along with a brief description and text of the proposed rule
change, at least five business days prior to the date of filing of the
proposed rule change.
    FINRA asks that the Commission waive the 30-day pre-operative
waiting period contained in Exchange Act Rule 19b-4(f)(6)(iii).\13\
FINRA requests this waiver in order to prevent a lapse in the current
pilots.
---------------------------------------------------------------------------

    \13\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission acknowledges that the proposal presents no novel
issues, and that it will provide a benefit to market participants by
avoiding a temporary lapse in the pilot programs. For these reasons,
the Commission believes it is consistent with the protection of
investors and the public interest to waive the 30-day operative delay,
and hereby grants such waiver.\14\
---------------------------------------------------------------------------

    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2011-003 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-2011-003. 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 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 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-2011-
003 and

should be submitted on or before February 15, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-1434 Filed 1-24-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 79, Number 161 (Wednesday, August 20, 2014)]
[Notices]
[Pages 49372-49374]
[FR Doc No: 2014-19744]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2014-0062]

ICD-10-CM/AIS Mapping Software

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Request for information; reopening of comment period.

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SUMMARY: This document announces the reopening of the comment period on
a Request for Information (RFI) regarding the potential development of
a mapping software to translate the International Statistical
Classification of Diseases and Related Health Problems, 10th Revision,
Clinical Modification (ICD-10-CM) discharge diagnoses into Abbreviated
Injury Scale (AIS) pre-dot codes, injury descriptors, and severity
scores. The original RFI was issued on June 12, 2014, and had a 60-day
comment period ending on August 11, 2014. In response to continued
interest in this issue, NHTSA is reopening the comment period for this
RFI until September 30, 2014.

DATES: The comment period for the RFI published on June 12, 2014 (79 FR
33799) is extended. Comments must be received no later than September
30, 2014.

ADDRESSES:
    Comments: You may submit comments [identified by Docket Number
NHTSA-2014-0062] by any of the following methods:
     Internet: To submit comments electronically, go to the
U.S. Government regulations Web site at http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Fax: Written comments may be faxed to<PHONE_NUMBER>.
     Mail: Send comments to Docket Management Facility, U.S.
Department of Transportation, 1200 New Jersey Avenue SE., West Building
Ground Floor, Room W12-140, Washington, DC 20590.
     Hand Delivery: If you plan to submit written comments by
hand or courier, please do so at 1200 New Jersey Avenue SE., West
Building Ground Floor, Room W12-140, Washington, DC between 9 a.m. and
5 p.m. Eastern Time, Monday through Friday, except federal holidays
     You may call Docket Management at 1-800-647-5527.
    Instructions: For detailed instructions on submitting comments and
additional

information see the Comments heading of the Supplementary Information
section of this document. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: For questions about the program
discussed herein, contact John Kindelberger, Chief of the Evaluation
Division, Office of Regulatory Analysis and Evaluation, Room W53-312,
1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-
4696. Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On June 12, 2014, NHTSA published a notice
(79 FR 33799) requesting comment and information the potential
development of a mapping software to translate the International
Statistical Classification of Diseases and Related Health Problems,
10th Revision, Clinical Modification (ICD-10-CM) discharge diagnoses
into Abbreviated Injury Scale (AIS) pre-dot codes, injury descriptors,
and severity scores.
    On January 16, 2009, the U.S. Department of Health and Human
Services (HHS) published a final rule adopting ICD-10-CM to replace
ICD-9-CM in transactions covered by the Health Insurance Portability
Accountability Act (HIPAA). The deadline for adopting ICD-10-CM has
been postponed several times but is currently scheduled to take place
at some point after October 1, 2015 (http://www.cms.gov/Medicare/Coding/ICD10/index.html?redirect=/icd10).
    The ``Moving Ahead for Progress in the 21st Century'' Act (MAP-21),
signed into law on July 6, 2012, requires the FHWA to establish
measures for State departments of transportation to assess and report
numbers and rates per vehicle mile traveled of roadway fatalities and
serious injuries. [Sec.  1203; 23 USC 150(c).] In Notice of Proposed
Rulemaking 79 FR 13845 (Mar. 11, 2014), which can be found at http://www.regulation.gov, the FHWA recommends that States prepare themselves
so that no later than January 1, 2020, all States use a medical record
injury outcome reporting system that links injury outcomes from medical
records to crash reports.
    The DOT seeks comments and information from the public sector,
private sector, and academic communities concerning the potential
development of ICD-10-CM/AIS mapping software that would address the
issues described in this RFI. While comments are welcome on any area of
the RFI, the DOT is particularly interested in responses to the
questions listed below. Responders are reminded that feedback or
comments on any aspect of this notice are welcome from all interested
public, private, and academic entities. While all feedback is welcome,
the DOT is particularly interested in feedback on the following
questions. Respondents may respond, to some, all, or none of these
specific questions:
    1. Is there a need for a mapping tool that translates ICD-10-CM
codes to the AIS standard?
    2. Is there a need for an updated mapping tool that translates ICD-
9-CM codes to the AIS standard?
    3. Are any steps currently being taken to develop a mapping tool?
    4. What capabilities should such a mapping tool possess?
    5. What platforms should the mapping tool run on?
    6. Should the mapping tool be non-proprietary?
    Injury data enables epidemiologists, researchers, and policymakers
to better identify the severity of injuries in addition to where, when,
and why they occur. This data is, however, frequently spread among
discrete databases that are difficult to link to each other or to
injury causation data. The ability to link these datasets together is
thus critical to efforts to understand injury trends, set injury
prevention priorities, identify high risk populations and geographic
areas, and develop targeted injury prevention strategies. The DOT,
however, is particularly interested in forging and maintaining links
among vehicle crash and injury datasets as such links can provide more
complete information and better understanding of crash outcomes.
    State trauma registry and hospital discharge databases are two of
the more significant sources of injury data. Trauma registries are
designed to collect large amounts of information about the most
seriously injured patients and are not typically used for injury
surveillance purposes on their own. Hospital discharge datasets are
designed primarily to monitor hospital census, utilization, and
financial information but record enough information--like diagnosis
codes and external cause/E-codes--to make them useful injury
surveillance tools. In addition, the pre-hospital emergency medical
services (EMS) patient care reports, compliant with the National EMS
Information System (NEMSIS) Standard, may be helpful, as they can serve
as good link between the crash data and hospital data. NEMSIS data is
submitted to the state level by local EMS agencies, and the collective
statewide data is submitted to the National EMS Database. The most
effective linkage point at this time is at the State level.
    These datasets are generally coded using different methodologies.
Trauma registries use the Abbreviated Injury Scale while hospitals and
emergency departments use the International Statistical Classification
of Diseases and Related Health Problems for diagnosis, reporting, and
billing.
    The Abbreviated Injury Scale (AIS), developed by the Association
for the Advancement of Automotive Medicine (AAAM), is an anatomically
based, consensus derived, global severity scoring system that
classifies each injury by body region according to its relative
importance on a 6-point ordinal scale (1 = minor and 6 = maximal). The
AIS is the basis for the Injury Severity Score (ISS) calculation of the
multiply injured patient. The AIS is protected by copyright, and both
individual use and site licenses can be purchased from AAAM (http://www.aaam.org/about-ais.html).
    The maximum AIS (MAIS) severity level is a recognized person-level
injury severity indicator. For example, the Organization for Economic
Co-Operation and Development's International Traffic Safety Data and
Analysis Group (IRTAD) has recommended that MAIS of level three or
higher be used as the standard for a seriously injured person in a
motor vehicle crash (http://www.internationaltransportforum.org/irtadpublic/pdf/Road-Casualties-Web.pdf).
    Maintained by the World Health Organization (WHO), the
International Statistical Classification of Diseases and Related Health
Problems (ICD) is the international standard diagnostic tool for
epidemiology, health management, and clinical purposes. While a version
of the ninth revision, ICD-9-CM, is currently still widely used in the
US, a replacement based on the tenth revision, ICD-10-CM, has been
developed by a National Center for Health Statistics (NCHS) Technical
Advisory Panel following extensive consultation with physician groups,
clinical coders, and others to assure clinical accuracy and utility
(http://www.cdc.gov/nchs/icd/icd10cm.htm).
    In the early 90's researchers at Johns Hopkins University developed
a software tool (ICDMAP) that allowed analysts to generate a Maximum
AIS (MAIS) or an Injury Severity Score (ISS) for each injured patient
in the hospital discharge database using the ICD-9-CM diagnosis codes
of each patient's record.

The ICDMAP enabled statewide performance measurement by MAIS and
allowed analysts to associate the severity outcomes to with crash,
vehicle, and roadway circumstances for planning and/or evaluation of
countermeasures.
    While the ICDMAP-generated results are not as precise as those
derived by clinicians in trauma registries, this approach has been
validated and yields good sensitivity in estimating severity for
studying the larger universe of injury hospitalizations. Translating
ICD codes to AIS allows all crash-involved injuries to be compiled and
analyzed in terms of AIS and MAIS severity. When linked to causal
information--State crash databases, for example--ICD codes can be used
to improve measurement of crash-related injury severity.
    There is not, however, currently any known software or service
capable of translating between ICD-10-CM and AIS. Once hospitals
transition to the ICD-10-CM, combining these two sets of injury data
will no longer be possible, and analyses will be less complete and less
useful. Significant effort is needed to develop a mapping tool that
will enable mapping of ICD-10-CM diagnosis codes with the corresponding
AIS severity codes.

RFI Guidelines

    Responses to this notice are not offers and cannot be accepted by
the Government to form a binding contract or issue a grant. Information
obtained as a result of this RFI may be used by the Government for
program planning on a non-attribution basis. This RFI notice is NOT a
solicitation for proposals, applications, proposal abstracts, or
quotations. This RFI notice is not to be construed as a commitment on
the part of the Government to award a contract or grant, nor does the
Government intend to directly pay for any information or responses
submitted as a result of this RFI notice.

Comments

How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the Docket
number of this document (NHTSA-2014-0062) in your comments.
    Your primary comments must not be more than 15 pages long (49 CFR
553.21). However, you may attach additional documents to your primary
comments. There is no limit on the length of the attachments.
    Please submit one copy of your comments, including the attachments,
to Docket Management at the address given above under ADDRESSES.
    Please note that pursuant to the Data Quality Act, in order for
substantive data to be relied upon and used by the agency, it must meet
the information quality standards set forth in the OMB and DOT Data
Quality Act guidelines. Accordingly, we encourage you to consult the
guidelines in preparing your comments. OMB's guidelines may be accessed
at http://www.whitehouse.gov/omb/fedreg_reproducible. DOT's guidelines
may be accessed at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/statistical_policy_and_research/data_quality_guidelines/index.html.
    Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78) or you may visit http://www.regulations.gov.

How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail. You may also periodically
access http://www.regulations.gov and enter the number for this docket
(NHTSA-2014-0062) to see if your comments are on line.

How do I submit confidential business information?

    If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Washington, DC, 20590. In
addition, you should submit a copy, from which you have deleted the
claimed confidential business information, to Docket Management at the
address given above under ADDRESSES. When you send a comment containing
information claimed to be confidential business information, you should
include a cover letter setting forth the information specified in our
confidential business information regulation (49 CFR Part 512).

Will the agency consider late comments?

    In our response, we will consider all comments that Docket
Management receives before the close of business on the comment closing
date indicated above under DATES. To the extent possible, we will also
consider comments that Docket Management receives after that date.

How can I read the comments submitted by other people?

    You may read the comments received by Docket Management at the
address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location.
    You may also see the comments on the Internet. To read the comments
on the Internet, take the following steps:
    (1) Go to the Federal Docket Management System (FDMS) at http://www.regulations.gov.
    (2) FDMS provides two basic methods of searching to retrieve
dockets and docket materials that are available in the system: (a)
``Quick Search'' to search using a full-text search engine, or (b)
``Advanced Search,'' which displays various indexed fields such as the
docket name, docket identification number, phase of the action,
initiating office, date of issuance, document title, document
identification number, type of document, Federal Register reference,
CFR citation, etc. Each data field in the advanced search may be
searched independently or in combination with other fields, as desired.
Each search yields a simultaneous display of all available information
found in FDMS that is relevant to the requested subject or topic.
    (3) You may download the comments. However, since the comments are
imaged documents, instead of word processing documents, the ``pdf''
versions of the documents are word searchable.
    Please note that even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.

    Authority: 49 U.S.C. 30111, 30181-83 delegation of authority at
49 CFR 1.95 and 501.8.

    Issued in Washington, DC.
Terry Shelton,
Associate Administrator for the National Center for Statistics and
Analysis.
[FR Doc. 2014-19744 Filed 8-19-14; 8:45 am]
BILLING CODE 4910-59-P