[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Notices]
[Pages 68632-68636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28185]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63230; File No. 4-618]
Program for Allocation of Regulatory Responsibilities Pursuant to
Rule 17d-2; Notice of Filing of Proposed Plan for the Allocation of
Regulatory Responsibilities Between BATS Exchange, Inc., BATS Y-
Exchange, Inc., Chicago Board Options Exchange, Inc., Chicago Stock
Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial
Industry Regulatory Authority, Inc., The NASDAQ Stock Market LLC,
NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, National Stock Exchange,
Inc., New York Stock Exchange LLC, NYSE Amex LLC, and NYSE Arca, Inc.
Relating to Regulation NMS Rules
November 2, 2010.
Pursuant to Section 17(d) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 17d-2 thereunder,\2\ notice is hereby given that
on October 15, 2010, BATS Exchange, Inc. (``BATS''), BATS Y-Exchange,
Inc. (``BATS Y''), Chicago Board Options Exchange, Inc. (``CBOE'') \3\,
Chicago Stock Exchange, Inc. (``CHX''), EDGA Exchange, Inc. (``EDGA''),
EDGX Exchange, Inc. (``EDGX''), Financial Industry Regulatory
Authority, Inc. (``FINRA''), The NASDAQ Stock Market LLC (``NASDAQ''),
NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC (``PHLX''), National Stock
Exchange, Inc. (``NSX''), New York Stock Exchange LLC (``NYSE''), NYSE
Amex LLC (``NYSE Amex''), and NYSE Arca, Inc. (``NYSE Arca'')
(together, the ``Participating Organizations'' or the ``Parties'')
filed with the Securities and Exchange Commission (``Commission'' or
``SEC'') a plan for the allocation of regulatory responsibilities with
respect to certain Regulation NMS Rules listed in Exhibit A to the Plan
(``17d-2 Plan'' or the ``Plan''). The Commission is publishing this
notice to solicit comments on the 17d-2 Plan from interested persons.
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\1\ 15 U.S.C. 78q(d).
\2\ 17 CFR 240.17d-2.
\3\ CBOE's allocation of certain regulatory responsibilities
under this Agreement is limited to the activities of the CBOE Stock
Exchange, LLC, a facility of CBOE.
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[[Page 68633]]
I. Introduction
Section 19(g)(1) of the Act,\4\ among other things, requires every
self-regulatory organization (``SRO'') registered as either a national
securities exchange or national securities association to examine for,
and enforce compliance by, its members and persons associated with its
members with the Act, the rules and regulations thereunder, and the
SRO's own rules, unless the SRO is relieved of this responsibility
pursuant to Section 17(d) or Section 19(g)(2) of the Act.\5\ Without
this relief, the statutory obligation of each individual SRO could
result in a pattern of multiple examinations of broker-dealers that
maintain memberships in more than one SRO (``common members''). Such
regulatory duplication would add unnecessary expenses for common
members and their SROs.
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\4\ 15 U.S.C. 78s(g)(1).
\5\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
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Section 17(d)(1) of the Act \6\ was intended, in part, to eliminate
unnecessary multiple examinations and regulatory duplication.\7\ With
respect to a common member, Section 17(d)(1) authorizes the Commission,
by rule or order, to relieve an SRO of the responsibility to receive
regulatory reports, to examine for and enforce compliance with
applicable statutes, rules, and regulations, or to perform other
specified regulatory functions.
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\6\ 15 U.S.C. 78q(d)(1).
\7\ See Securities Act Amendments of 1975, Report of the Senate
Committee on Banking, Housing, and Urban Affairs to Accompany S.
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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To implement Section 17(d)(1), the Commission adopted two rules:
Rule 17d-1 and Rule 17d-2 under the Act.\8\ Rule 17d-1 authorizes the
Commission to name a single SRO as the designated examining authority
(``DEA'') to examine common members for compliance with the financial
responsibility requirements imposed by the Act, or by Commission or SRO
rules.\9\ When an SRO has been named as a common member's DEA, all
other SROs to which the common member belongs are relieved of the
responsibility to examine the firm for compliance with the applicable
financial responsibility rules. On its face, Rule 17d-1 deals only with
an SRO's obligations to enforce member compliance with financial
responsibility requirements. Rule 17d-1 does not relieve an SRO from
its obligation to examine a common member for compliance with its own
rules and provisions of the federal securities laws governing matters
other than financial responsibility, including sales practices and
trading activities and practices.
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\8\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
\9\ See Securities Exchange Act Release No. 12352 (April 20,
1976), 41 FR 18808 (May 7, 1976).
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To address regulatory duplication in these and other areas, the
Commission adopted Rule 17d-2 under the Act.\10\ Rule 17d-2 permits
SROs to propose joint plans for the allocation of regulatory
responsibilities with respect to their common members. Under paragraph
(c) of Rule 17d-2, the Commission may declare such a plan effective if,
after providing for appropriate notice and comment, it determines that
the plan is necessary or appropriate in the public interest and for the
protection of investors; to foster cooperation and coordination among
the SROs; to remove impediments to, and foster the development of, a
national market system and a national clearance and settlement system;
and is in conformity with the factors set forth in Section 17(d) of the
Act. Commission approval of a plan filed pursuant to Rule 17d-2
relieves an SRO of those regulatory responsibilities allocated by the
plan to another SRO.
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\10\ See Securities Exchange Act Release No. 12935 (October 28,
1976), 41 FR 49091 (November 8, 1976).
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II. Proposed Plan
The proposed 17d-2 Plan is intended to reduce regulatory
duplication for firms that are common members of both FINRA and one or
more exchanges that are a Party to the proposed 17d-2 Plan. Pursuant to
the proposed 17d-2 Plan, FINRA would assume certain examination and
enforcement responsibilities for common members with respect to certain
applicable laws, rules, and regulations.
The text of the Plan delineates the proposed regulatory
responsibilities with respect to the Parties. Included in the proposed
Plan is an exhibit (the ``Covered Regulation NMS Rules'') that lists
the Federal securities laws, rules, and regulations, for which FINRA
would bear responsibility under the Plan for overseeing and enforcing
with respect to members of a Participating Organization that are also
members of FINRA and the associated persons therewith (``Dual
Members'').
Specifically, under the 17d-2 Plan, FINRA would assume examination
and enforcement responsibility relating to compliance by Dual Members
with the Covered Regulation NMS Rules. Covered Regulation NMS Rules
would not include the application of any rule of a Participating
Organization, or any rule or regulation under the Act, to the extent
that it pertains to violations of insider trading activities, because
such matters are covered by a separate multiparty agreement under Rule
17d-2.\11\ Under the Plan, the Participating Organizations would retain
full responsibility for surveillance and enforcement with respect to
trading activities or practices involving its own marketplace.\12\
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\11\ See Securities Exchange Act Release No. 58350 (August 13,
2008), 73 FR 48247 (August 18, 2008) (File No. 4-566) (notice of
filing of proposed plan). See also Securities Exchange Act Release
No. 58536 (September 12, 2008) (File No. 4-566) (order approving and
declaring effective the plan). The Certification identifies several
Common Rules that may also be addressed in the context of regulating
insider trading activities pursuant to the proposed separate
multiparty agreement.
\12\ See paragraph 1 of the proposed 17d-2 Plan.
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The text of the proposed 17d-2 Plan is as follows:
Agreement for the Allocation of Regulatory Responsibility for the
Covered Regulation NMS Rules pursuant to Sec. 17(d) of the Securities
Exchange Act of 1934, 15 U.S.C. Sec. 78q(d), and Rule 17d-2 Thereunder
This agreement (the ``Agreement'') by and among BATS Exchange, Inc.
(``BATS''), BATS Y-Exchange, Inc. (``BATS Y''), Chicago Board Options
Exchange, Inc. (``CBOE'') \13\, Chicago Stock Exchange, Inc. (``CHX''),
EDGA Exchange, Inc. (``EDGA''), EDGX Exchange, Inc. (``EDGX''),
Financial Industry Regulatory Authority, Inc. (``FINRA''), The NASDAQ
Stock Market LLC (``NASDAQ''), NASDAQ OMX BX, Inc., NASDAQ OMX PHLX,
Inc., National Stock Exchange, Inc. (``NSX''), New York Stock Exchange
LLC (``NYSE''), NYSE Amex LLC (``NYSE Amex''), and NYSE Arca, Inc.
(``NYSE Arca'') (together, the ``Participating Organizations''), is
made pursuant to Sec. 17(d) of the Securities Exchange Act of 1934
(the ``Act'' or ``SEA''), 15 U.S.C. Sec. 78q(d), and Rule 17d-2
thereunder, which allow for plans to allocate regulatory responsibility
among self-regulatory organizations (``SROs'').
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\13\ CBOE's allocation of certain regulatory responsibilities
under this Agreement is limited to the activities of the CBOE Stock
Exchange, LLC, a facility of CBOE.
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WHEREAS, the Participating Organizations desire to: (a) foster
cooperation and coordination among the SROs; (b) remove impediments to,
and foster the development of, a national market system; (c) strive to
protect the interest of investors; and (d) eliminate duplication in
their examination and enforcement of SEA Rules 611(a) and (b) and 612
(the ``Covered Regulation NMS Rules'');
WHEREAS, the Participating Organizations are interested in
[[Page 68634]]
allocating regulatory responsibilities with respect to broker-dealers
that are members of more than one Participating Organization (the
``Common Members'') relating to the examination and enforcement of the
Covered Regulation NMS Rules; and
WHEREAS, the Participating Organizations will request regulatory
allocation of these regulatory responsibilities by executing and filing
with the Securities and Exchange Commission (``Commission'' or ``SEC'')
a plan for the above stated purposes (this Agreement) pursuant to the
provisions of Sec. 17(d) of the Act, and Rule 17d-2 thereunder, as
described below.
NOW, THEREFORE, in consideration of the mutual covenants contained
hereafter, and other valuable consideration to be mutually exchanged,
the Participating Organizations hereby agree as follows:
1. Assumption of Regulatory Responsibility. The Designated
Regulation NMS Examining Authority (the ``DREA'') shall assume
examination and enforcement responsibilities relating to compliance by
Common Members with the Covered Regulation NMS Rules (``Regulatory
Responsibility''). A list of the Covered Regulation NMS Rules is
attached hereto as Exhibit A. FINRA shall serve as DREA for Common
Members that are members of FINRA. The Designated Examining Authority
pursuant to SEA Rule 17d-1 (``DEA'') shall serve as DREA for Common
Members that are not members of FINRA. Notwithstanding anything herein
to the contrary, it is explicitly understood that the term ``Regulatory
Responsibility'' does not include, and each of the Participating
Organizations shall retain full responsibility for examination,
surveillance and enforcement with respect to trading activities or
practices involving its own marketplace unless otherwise allocated
pursuant to a separate Rule 17d-2 Agreement. Whenever a Common Member
ceases to be a member of its DREA, the DREA shall promptly inform the
Common Member's DEA, which will become such Common Member's new DREA.
2. No Retention of Regulatory Responsibility. The Participating
Organizations do not contemplate the retention of any responsibilities
with respect to the regulatory activities being assumed by the DREA
under the terms of this Agreement. Nothing in this Agreement will be
interpreted to prevent a DREA from entering into Regulatory Services
Agreement(s) to perform its Regulatory Responsibility.
3. No Charge. A DREA shall not charge Participating Organizations
for performing the Regulatory Responsibility under this Agreement.
4. Applicability of Certain Laws, Rules, Regulations or Orders.
Notwithstanding any provision hereof, this Agreement shall be subject
to any statute, or any rule or order of the SEC. To the extent such
statute, rule, or order is inconsistent with one or more provisions of
this Agreement, the statute, rule, or order shall supersede the
provision(s) hereof to the extent necessary to be properly effectuated
and the provision(s) hereof in that respect shall be null and void.
5. Customer Complaints. If a Participating Organization receives a
copy of a customer complaint relating to a DREA's Regulatory
Responsibility as set forth in this Agreement, the Participating
Organization shall promptly forward to such DREA a copy of such
customer complaint. It shall be such DREA's responsibility to review
and take appropriate action in respect to such complaint.
6. Parties to Make Personnel Available as Witnesses. Each
Participating Organization shall make its personnel available to the
DREA to serve as testimonial or non-testimonial witnesses as necessary
to assist the DREA in fulfilling the Regulatory Responsibility
allocated under this Agreement. The DREA shall provide reasonable
advance notice when practicable and shall work with a Participating
Organization to accommodate reasonable scheduling conflicts within the
context and demands as the entity with ultimate regulatory
responsibility. The Participating Organization shall pay all reasonable
travel and other expenses incurred by its employees to the extent that
the DREA requires such employees to serve as witnesses, and provide
information or other assistance pursuant to this Agreement.
7. Sharing of Work-Papers, Data and Related Information.
a. Sharing. A Participating Organization shall make available to
the DREA information necessary to assist the DREA in fulfilling the
Regulatory Responsibility assumed under the terms of this Agreement.
Such information shall include any information collected by a
Participating Organization in the course of performing its regulatory
obligations under the Act, including information relating to an on-
going disciplinary investigation or action against a member, the amount
of a fine imposed on a member, financial information, or information
regarding proprietary trading systems gained in the course of examining
a member (``Regulatory Information''). This Regulatory Information
shall be used by the DREA solely for the purposes of fulfilling the
DREA's Regulatory Responsibility.
b. No Waiver of Privilege. The sharing of documents or information
between the parties pursuant to this Agreement shall not be deemed a
waiver as against third parties of regulatory or other privileges
relating to the discovery of documents or information.
8. Special or Cause Examinations and Enforcement Proceedings.
Nothing in this Agreement shall restrict or in any way encumber the
right of a Participating Organization to conduct special or cause
examinations of a Common Member, or take enforcement proceedings
against a Common Member as a Participating Organization, in its sole
discretion, shall deem appropriate or necessary.
9. Dispute Resolution Under this Agreement.
a. Negotiation. The Participating Organizations will attempt to
resolve any disputes through good faith negotiation and discussion,
escalating such discussion up through the appropriate management levels
until reaching the executive management level. In the event a dispute
cannot be settled through these means, the Participating Organizations
shall refer the dispute to binding arbitration.
b. Binding Arbitration. All claims, disputes, controversies, and
other matters in question between the Participating Organizations to
this Agreement arising out of or relating to this Agreement or the
breach thereof that cannot be resolved by the Participating
Organizations will be resolved through binding arbitration. Unless
otherwise agreed by the Participating Organizations, a dispute
submitted to binding arbitration pursuant to this paragraph shall be
resolved using the following procedures:
(i) The arbitration shall be conducted in a city selected by the
DREA in which it maintains a principal office or where otherwise agreed
to by the Participating Organizations in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof; and
(ii) There shall be three arbitrators, and the chairperson of the
arbitration panel shall be an attorney.
10. Limitation of Liability. As between the Participating
Organizations, no Participating Organization, including its respective
directors, governors, officers, employees and agents, will be liable to
any other Participating Organization, or its directors, governors,
officers,
[[Page 68635]]
employees and agents, for any liability, loss or damage resulting from
any delays, inaccuracies, errors or omissions with respect to its
performing or failing to perform regulatory responsibilities,
obligations, or functions, except (a) as otherwise provided for under
the Act, (b) in instances of a Participating Organization's gross
negligence, willful misconduct or reckless disregard with respect to
another Participating Organization, or (c) in instances of a breach of
confidentiality obligations owed to another Participating Organization.
The Participating Organizations understand and agree that the
regulatory responsibilities are being performed on a good faith and
best effort basis and no warranties, express or implied, are made by
any Participating Organization to any other Participating Organization
with respect to any of the responsibilities to be performed hereunder.
This paragraph is not intended to create liability of any Participating
Organization to any third party.
11. SEC Approval.
a. The Participating Organizations agree to file promptly this
Agreement with the SEC for its review and approval. FINRA shall file
this Agreement on behalf, and with the explicit consent, of all
Participating Organizations.
b. If approved by the SEC, the Participating Organizations will
notify their members of the general terms of the Agreement and of its
impact on their members.
12. Subsequent Parties; Limited Relationship. This Agreement shall
inure to the benefit of and shall be binding upon the Participating
Organizations hereto and their respective legal representatives,
successors, and assigns. Nothing in this Agreement, expressed or
implied, is intended or shall: (a) Confer on any person other than the
Participating Organizations hereto, or their respective legal
representatives, successors, and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, (b)
constitute the Participating Organizations hereto partners or
participants in a joint venture, or (c) appoint one Participating
Organization the agent of the other.
13. Assignment. No Participating Organization may assign this
Agreement without the prior written consent of the DREAs performing
Regulatory Responsibility on behalf of such Participating Organization,
which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, that any Participating Organization may
assign the Agreement to a corporation controlling, controlled by or
under common control with the Participating Organization without the
prior written consent of such Participating Organization's DREAs. No
assignment shall be effective without Commission approval.
14. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
15. Termination. Any Participating Organization may cancel its
participation in the Agreement at any time upon the approval of the
Commission after 180 days written notice to the other Participating
Organizations (or in the case of a change of control in ownership of a
Participating Organization, such other notice time period as that
Participating Organization may choose). The cancellation of its
participation in this Agreement by any Participating Organization shall
not terminate this Agreement as to the remaining Participating
Organizations.
16. General. The Participating Organizations agree to perform all
acts and execute all supplementary instruments or documents that may be
reasonably necessary or desirable to carry out the provisions of this
Agreement.
17. Written Notice. Any written notice required or permitted to be
given under this Agreement shall be deemed given if sent by certified
mail, return receipt requested, or by a comparable means of electronic
communication to each Participating Organization entitled to receipt
thereof, to the attention of the Participating Organization's
representative at the Participating Organization's then principal
office or by e-mail.
18. Confidentiality. The Participating Organizations agree that
documents or information shared shall be held in confidence, and used
only for the purposes of carrying out their respective regulatory
obligations under this Agreement, provided, however, that each
Participating Organization may disclose such documents or information
as may be required to comply with applicable regulatory requirements or
requests for information from the SEC. Any Participating Organization
disclosing confidential documents or information in compliance with
applicable regulatory or oversight requirements will request
confidential treatment of such information. No Participating
Organization shall assert regulatory or other privileges as against the
other with respect to Regulatory Information that is required to be
shared pursuant to this Agreement.
19. Regulatory Responsibility. Pursuant to Section 17(d)(1)(A) of
the Act, and Rule 17d-2 thereunder, the Participating Organizations
request the SEC, upon its approval of this Agreement, to relieve the
Participating Organizations which are participants in this Agreement
that are not the DREA as to a Common Member of any and all
responsibilities with respect to the matters allocated to the DREA
pursuant to this Agreement for purposes of Sec. Sec. 17(d) and 19(g)
of the Act.
20. Governing Law. This Agreement shall be deemed to have been made
in the State of New York, and shall be construed and enforced in
accordance with the law of the State of New York, without reference to
principles of conflicts of laws thereof. Each of the Participating
Organizations hereby consents to submit to the jurisdiction of the
courts of the State of New York in connection with any action or
proceeding relating to this Agreement.
21. Survival of Provisions. Provisions intended by their terms or
context to survive and continue notwithstanding delivery of the
regulatory services by the DREA and any expiration of this Agreement
shall survive and continue.
22. Amendment.
a. This Agreement may be amended to add a new Participating
Organization, provided that such Participating Organization does not
assume regulatory responsibility, solely by an amendment executed by
all applicable DREAs and such new Participating Organization. All other
Participating Organizations expressly consent to allow such DREAs to
jointly add new Participating Organizations to the Agreement as
provided above. Such DREAs will promptly notify all Participating
Organizations of any such amendments to add a new Participating
Organization.
b. All other amendments must be made approved by each Participating
Organization. All amendments, including adding a new Participating
Organization, must be filed with and approved by the Commission before
they become effective.
23. Effective Date. The Effective Date of this Agreement will be
the date the SEC declares this Agreement to be effective pursuant to
authority conferred
[[Page 68636]]
by Sec. 17(d) of the Act, and Rule 17d-2 thereunder.
24. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile, each of which will be deemed an
original, but all of which taken together shall constitute one single
agreement among the Participating Organizations.
* * * * *
EXHIBIT A
COVERED REGULATION NMS RULES
SEA Rule 611(a)--Order Protection Rule.--Reasonable Policies and
Procedures.
SEA Rule 611(b)--Order Protection Rule.--Exceptions.
SEA Rule 612--Minimum Pricing Increment.
III. Date of Effectiveness of the Proposed Plan and Timing for
Commission Action
Pursuant to Section 17(d)(1) of the Act \14\ and Rule 17d-2
thereunder,\15\ after November 29, 2010, the Commission may, by written
notice, declare the proposed Plan, File No. 4-618, to be effective if
the Commission finds that the plan is necessary or appropriate in the
public interest and for the protection of investors, to foster
cooperation and coordination among self-regulatory organizations, or to
remove impediments to and foster the development of the national market
system and a national system for the clearance and settlement of
securities transactions and in conformity with the factors set forth in
Section 17(d) of the Act.
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\14\ 15 U.S.C. 78q(d)(1).
\15\ 17 CFR 240.17d-2.
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IV. Solicitation of Comments
In order to assist the Commission in determining whether to approve
the proposed 17d-2 Plan and to relieve the Participating Organizations
of the responsibilities which would be assigned to FINRA, interested
persons are invited to submit written data, views, and arguments
concerning the foregoing. Comments may be submitted by any of the
following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/other.shtml); or
Send an e-mail to [email protected]. Please include
File Number 4-618 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number 4-618. 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/other.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed plan that are filed with the
Commission, and all written communications relating to the proposed
plan 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, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of the plan also will be
available for inspection and copying at the principal offices of the
Participating Organizations. 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 4-618 and should be submitted on or before November 29,
2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(34).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-28185 Filed 11-5-10; 8:45 am]
BILLING CODE 8011-01-P