Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, Relating to Over-the-Counter Equity Trade Reporting and OATS Reporting

On November 12, 2013, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) and Rule 19b-4 thereunder, a proposed rule change to amend the FINRA rules governing the reporting of (i) over-the-counter (“OTC”) transactions in equity securities to the FINRA Facilities; and (ii) orders in NMS stocks and OTC Equity Securities to the Order Audit Trail System (“OATS”). The Proposal was published for comment in the Federal Register on November 29, 2013. The Commission received one comment on the proposed rule change. On January 9, 2014, the Commission extended the time period for Commission action on the proposal to February 27, 2014. FINRA responded to the comment and submitted an amendment to the proposed rule change on February 14, 2014. The Commission is approving the proposed rule change as amended on an accelerated basis.

I. Description of the Proposed Rule Change

FINRA proposes to amend the equity trade reporting rules relating to reporting: (i) An additional time field for specified trades; (ii) execution time in milliseconds; (iii) reversals; (iv) trades executed on non-business days and trades that are more than one year old; and (v) “step-outs.” In addition, FINRA proposes changes in the processing of trades that are submitted to a FINRA Facility for clearing as well as technical changes to the rules relating to the OTC Reporting Facility (“ORF”) and codifying existing OATS guidance regarding reporting order event times to OATS in milliseconds. FINRA also proposes several non-substantive technical changes to rules that are otherwise being amended by this proposed rule change.

Reporting an Additional Time Field

FINRA rules require that trade reports submitted to the FINRA Facilities include the time of trade execution, except where another time is expressly required by rule. With respect to Stop Stock transactions, and transactions that reflect an execution price that is based on a prior reference point in time (“PRP transactions”), current FINRA rules require that in lieu of the actual time the trade was executed, members report the time at which the member and the other party agreed to the Stop Stock price and the prior reference time, respectively. FINRA is proposing to require members to include two times when reporting Stop Stock transactions and PRP transactions: (1) The time at which the parties agree to the Stop Stock price or the prior reference time, and (2) the actual time of execution.

In addition, FINRA is proposing to require members to include two times when reporting block transactions using the Intermarket Sweep Order (“ISO”) exception (outbound) under SEC Rule 611 (“Order Protection Rule”) of Regulation NMS. Current FINRA guidance requires members to use the time that all material terms of the transaction are known as the execution time in the trade report. FINRA is proposing that trade reports reflect both the time the firm routed ISOs and the execution time, if different. With this additional time in the trade report, FINRA believes that it will be able to determine better whether ISOs were properly sent to other trading centers in compliance with the ISO exception to the Order Protection Rule.

FINRA believes that requiring members to report additional time-related information will ensure a more accurate and complete audit trail and enhance FINRA's ability to surveil on an automated basis for compliance with FINRA trade reporting and other rules. FINRA also believes that having both times reflected in the trade report will streamline member reviews and facilitate members' ability to demonstrate compliance with FINRA and other rules.

Reporting Time in Milliseconds

FINRA's trade reporting rules currently require members to report execution time to the FINRA Facilities in seconds, while the execution time for exchange trades is expressed in milliseconds. Similarly, the OATS rules currently requires members to record order event times in terms of hours, minutes, and seconds. FINRA notes that, because FINRA's audit trails consolidate exchange and OTC trades for regulatory purposes, sequencing consolidated transactions by execution time can be difficult with the different time formats, particularly in active stocks. To enhance and help bring consistency to FINRA's audit trail, FINRA is proposing amendments to require members to express time in milliseconds when reporting trades to the FINRA Facilities or order information to OATS, if the member's system captures time in milliseconds. Members with systems that do not capture milliseconds will be permitted to continue reporting time in seconds.

FINRA believes that where trades are executed by electronic systems that already capture execution time in milliseconds, it should be relatively straightforward for members to report such trades to the FINRA Facilities using milliseconds. Thus, FINRA does not believe that the proposed requirement would be burdensome for members, nor would it require them to make significant systems changes. FINRA recognizes, however, that where trades are executed manually, it would be more difficult for members to capture milliseconds for purposes of trade reporting. Accordingly, FINRA believes that it is appropriate not to require that all members capture and report time in milliseconds.

Reporting Reversals

FINRA rules require that if a trade that was previously reported to FINRA is cancelled, members must report the cancellation to the same FINRA Facility to which the trade was originally reported and must do so within the time frames set forth in the rules. Members report a “cancellation” when trades are cancelled on the date of execution and a “reversal” when trades are cancelled on a day after the date of execution. Today, when a member reports a reversal of a trade that was previously reported to a FINRA Facility, there is no requirement that the member provide information in the reversal report to identify the original trade. FINRA proposes requiring that members identify the original trade in the reversal report by including the control number generated by the FINRA Facility and report date for the original trade report. FINRA believes that this information will enable FINRA to better “link” reports of reversals with the associated previously reported trades and thereby allow FINRA to recreate more accurately the firm's market activity, as well as surveil for compliance with FINRA trade reporting rules. FINRA is also proposing several additional conforming amendments to the rules relating to trade cancellations.

Reporting Non-Business Day Trades and T+365 Trades

Currently, trades executed on non-business days (i.e., weekends and holidays) and trades reported more than 365 days after trade date (T+365) cannot be reported to a FINRA Facility and instead must be reported on “Form T” through FINRA's Firm Gateway. FINRA is proposing systems enhancements to enable members to submit reports of non-business day trades and T+365 trades electronically to the FINRA Facilities rather than using “Form T” to report such trades. As is the case today, non-business day trades and T+365 trades will not be submitted to clearing by the FINRA Facility or disseminated. FINRA also is proposing to amend the rules to require that members report non-business day trades on an “as/of” basis by 8:15 a.m. the next business day following execution with the unique trade report modifier to denote their execution outside normal market hours; trades not reported by 8:15 a.m. will be marked late. All T+365 trades will be reported on an “as/of” basis and will be marked late. FINRA believes that this requirement will ensure that non-business day trades are properly sequenced for audit trail purposes.

Reporting Step-Outs

Today, members can effectuate a “step-out” by submitting a clearing-only report to a FINRA Facility. FINRA rules prohibit members from submitting to a FINRA Facility any non-tape report (including but not limited to reports of step-outs) associated with a previously executed trade that was not reported to that FINRA Facility. For every step-out, one member is stepping out of (or transferring) the position and the other member is stepping into (or receiving) the position. Where both members are submitting a clearing-only report to a FINRA Facility, each member currently must use the “step-out” indicator. FINRA notes that, some clearing firms have requested the ability to see whether their correspondents are stepping out or stepping in with respect to such transfers. Accordingly, FINRA is proposing that, where both sides are submitting a clearing-only report to effectuate a step-out, the member transferring out of the position must report a step-out and the member receiving the position must report a step-in. FINRA believes that the proposed will more accurately reflect the transfer and will provide greater transparency for clearing firms whose correspondents effect these transfers.

Trade Processing

Currently, when firms use the trade acceptance and comparison process for locking in trades submitted for clearing through the ADF, FINRA/Nasdaq TRF, and ORF, the reporting party reports the trade and the contra party subsequently either accepts or declines the trade, and any trade that has been declined by the contra party is purged from the system at the end of trade date processing. FINRA proposes that, rather than being purged, declined trades will be carried over and remain available for cancellation or correction by the reporting party or acceptance by the contra party. Declined trades that are carried over will not be available for the automatic lock-in process described in the rules and will not be sent to clearing unless the parties take action. FINRA also is proposing to codify the existing requirement that the reporting member must cancel a declined trade that was previously reported for dissemination purposes to have the trade removed from the tape. In addition, FINRA is proposing technical changes to reorganize and clarify the provisions relating to locking in trades for clearing and the processing of T+N (also referred to “as/of”) trades. FINRA notes that these proposed trade processing changes will not impact the way members report to FINRA and will not require members to make changes to their systems.

ORF Technical Amendments

FINRA is proposing several additional technical amendments to the ORF rules. FINRA is proposing to delete unnecessary and obsolete language from the ORF rules. FINRA initially proposed to close the ORF at 6:30 p.m. Eastern Time rather than 8:00 p.m. However, in Amendment No. 1, FINRA proposes to keep the ORF closing time at 8:00 p.m.

Proposed Technical Changes in Amendment No. 1

FINRA is proposing a number of technical amendments to update cross-references and make other non-substantive changes to Rules 6282, 7130 and 7140 relating to the ADF as the result of the approval of SR-FINRA-2013-053.

II. Summary of Comment and Response

Request for Clarification

The FIF Letter requests clarification on a number of aspects of the proposed rule change. First, with respect to block transactions, FIF asks which route time would be expected on the trade report, given that, when multiple ISOs are routed, the route times could differ by one or more milliseconds. FINRA responds that its current guidance requires members to use the time that all material terms of the transaction are known as the execution time in the trade report, and under the proposed rule change, firms will be required to also report the time that the firm routed the ISOs (if different from the execution time). FINRA explains that firms will continue to report the time that all material terms of the transaction are known in the “execution time” field, and in the new time field (i.e., the reference or “ISO time” field), firms should report the time they used to determine the ISOs, if any, to route to any better-priced protected quotations (sometimes referred to as the time the firm takes a “snapshot” of the market). FINRA notes that, to comply with SEC Rule 611(b)(6), firms need to utilize an automated system that is capable of ascertaining current protected quotations and simultaneously routing the necessary ISOs. Thus, FINRA expects the “snapshot” time and the time that ISOs are routed to be the same. To the extent that these times differ, or where multiple ISOs are routed and the route times differ, FINRA believes that using the “snapshot” time in all instances will eliminate any confusion regarding which time to report.

FIF also questions whether report cards and matching will be maintained at the one-second level rather than at the millisecond level, noting that currently clocks are required to be synchronized to within one second of the National Institute of Standards and Technology (NIST) standard. FINRA responds that, with respect to report cards, the determination whether a trade has been reported late will remain at the second level for firms that report execution time in seconds, and for firms that report time in milliseconds, the determination will be made at the millisecond level. FINRA states that synchronization to the NIST standard would remain at the second (and not millisecond) level. However, FINRA notes that if a firm submits multiple reports for the same event (e.g., a trade report and an OATS execution report), FINRA would expect the granularity of the time stamps to be consistent.

FIF asks whether the requirement to include control numbers will be on a “go forward basis” only for T+365 reporting. FINRA responds that, in accordance with system requirements, the control number field will be a required field for all reports of reversals following implementation. However, FINRA will validate the control number only where the original trade was executed after implementation of the proposed rule change. Accordingly, when reversing trades that were executed prior to the implementation of the proposed rule change, firms will not be required to provide an actual control number and instead may insert a “dummy” number to populate the required field.

FIF also asks whether Form T will be retired as a result of the proposed rule change. FINRA responds that the proposed rule change requiring firms to report trades executed on non-business days and T+365 trades to the FINRA Facilities will significantly reduce the need for Form T. However, FINRA plan to retain Form T for use in instances in which firms need to report with Form T (e.g., where the ticker symbol for the security is no longer available or a market participant identifier is no longer active).

FIF questions whether there will be matching on “step-in” and “step-out” trades. FINRA responds that the FINRA Facilities that offer matching will match corresponding “step-out” and “step-in” submissions, but will not match two “step-in” or two “step-out” submissions.

FIF also asks whether declined trades that are corrected and subsequently accepted are subject to the “20 minute rule” for trade comparison. FINRA responds that a firm is required to accept or decline a trade within 20 minutes after execution, and FINRA generally expects firms to complete the process of accepting or declining a trade, including any subsequent updates, within that time frame. FINRA reminds firms that, where the reporting party enters inaccurate trade information, rather than declining the trade, the contra party should submit its own correct information within 20 minutes of execution to be in compliance with the rule.

FIF also notes its understanding that the millisecond requirement was not intended to introduce a significant burden on firms and that only those systems that capture millisecond time stamps in a reportable format are required to be reported. FINRA confirms that it is not mandating that firms start capturing milliseconds and any such proposal would be subject to a separate rule filing and notice and comment. However, where a firm's system captures time in milliseconds, FINRA expects that the system will be capable of reporting in milliseconds.

ORF Closing Time

FIF also recommends keeping the 8:00 p.m. closing time for the ORF to maintain consistency with FINRA's TRFs in order to reduce the likelihood of errors, allow firms to leverage current workflows and assist firms in resolving operational issues and completing processing before the end of the day. In response to this concern, in Amendment No. 1, FINRA proposes to maintain the closing time at 8:00 p.m.

Implementation Effort/Time Frame

FIF recommends a nine-month implementation period following Commission approval contingent upon the release of TRF specifications within seven months and the availability of a robust test environment within three months of the implementation date. FINRA responds that it believes that firms will have sufficient time to make the necessary systems changes for the ORF implementation, currently scheduled on June 2, 2014, and for the implementation no later than September 30, 2014 for the ADF and TRFs. FINRA notes that it will announce the implementation dates in a Regulatory Notice.

III. Discussion and Commission Findings

After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with Section 15A(b) of the Act. In particular, the Commission finds that the proposed rule change is consistent with FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, 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 proposes to amend the equity trade reporting rules relating to reporting: (i) an additional time field for specified trades; (ii) execution time in milliseconds; (iii) reversals; (iv) trades executed on non-business days and trades that are more than one year old; and (v) “step-outs.” In addition, FINRA proposes changes in the processing of trades that are submitted to a FINRA Facility for clearing as well as technical changes to the rules relating to the OTC Reporting Facility (“ORF”) and codifying existing OATS guidance regarding reporting order event times to OATS in milliseconds. The Commission believes that the proposed changes should enhance FINRA's audit trail and automated surveillance program, promote more consistent trade reporting by members, and aid in the detection of violations of FINRA trade reporting and other rules.

The Commission notes that FIF submitted a comment letter containing primarily clarifying questions and that FINRA submitted a response addressing these clarifying questions. The FIF Letter requested a substantive change to the proposal—that the ORF closing time remain 8 p.m. In its response in Amendment No. 1, FINRA proposed keeping the ORF closing time of 8 p.m.

For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 15A(b)(6) of the Act and the rules and regulations thereunder applicable to a national securities association.

IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods:

Electronic Comments

• Use the Commission's Internet comment form ( http://www.sec.gov/rules/sro.shtml ); or
• Send an email to rule-comments@sec.gov. Please include File Number SR-FINRA-2013-050 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-2013-050. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method.

The Commission will post all comments on the Commission's Internet Web site ( http://www.sec.gov/rules/sro.shtml ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. 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-2013-050 and should be submitted on or before [insert date 21 days from publication in the Federal Register].

V. Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1

The Commission finds good cause for approving the proposed rule change, as amended by Amendment No. 1 prior to the 30th day after the date of publication of notice in the Federal Register. Amendment No. 1 proposes maintaining the current 8:00 p.m. closing time of the ORF and includes technical amendments to update cross-references and make other non-substantive changes to Rules 6282, 7130 and 7140 relating to the ADF as the result of the approval of SR-FINRA-2013-053. Accordingly, the Commission finds good cause for approving the proposed rule change, as amended, on an accelerated basis, pursuant to Section 19(b)(2) of the Act.

VI. Conclusion

It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (SR-FINRA-2013-050), is hereby approved, as modified by Amendment No. 1 on an accelerated basis.