83_FR_30327 83 FR 30203 - Self-Regulatory Organizations; National Futures Association; Notice of Filing and Immediate Effectiveness of Proposed Change to the Interpretive Notice to NFA Compliance Rule 2-9: Enhanced Supervisory Requirements: Requiring NFA Members To Maintain a Record of All Electronic Written Communications

83 FR 30203 - Self-Regulatory Organizations; National Futures Association; Notice of Filing and Immediate Effectiveness of Proposed Change to the Interpretive Notice to NFA Compliance Rule 2-9: Enhanced Supervisory Requirements: Requiring NFA Members To Maintain a Record of All Electronic Written Communications

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 124 (June 27, 2018)

Page Range30203-30205
FR Document2018-13763

Federal Register, Volume 83 Issue 124 (Wednesday, June 27, 2018)
[Federal Register Volume 83, Number 124 (Wednesday, June 27, 2018)]
[Notices]
[Pages 30203-30205]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13763]


=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83490; File No. SR-NFA-2018-02]


Self-Regulatory Organizations; National Futures Association; 
Notice of Filing and Immediate Effectiveness of Proposed Change to the 
Interpretive Notice to NFA Compliance Rule 2-9: Enhanced Supervisory 
Requirements: Requiring NFA Members To Maintain a Record of All 
Electronic Written Communications

June 21, 2018.
    Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 
(``Exchange Act''),\1\ and Rule 19b-7 under the Exchange Act,\2\ notice 
is hereby given that on June 12, 2018, National Futures Association 
(``NFA'') filed with the Securities and Exchange Commission (``SEC'' or 
``Commission'') the proposed rule change described in Items I, II, and 
III below, which Items have been prepared by NFA. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(7).
    \2\ 17 CFR 240.19b-7.
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    On November 27, 2017, NFA filed this proposed rule change with the 
Commodity Futures Trading Commission (``CFTC'') and requested that the 
CFTC make a determination that review of the proposed rule change of 
NFA is not necessary. By letter dated December 11, 2017, the CFTC 
notified NFA of its determination not to review the proposed rule 
change.\3\
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    \3\ See letter from Matthew Kulkin, Director CFTC, to Carol A. 
Wooding, General Counsel, NFA (``Letter'').
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    The text of the proposed rule change is available at the self-
regulatory organization's office, on the NFA's website at 
www.nfa.futures.org, and at the SEC's Public Reference Room.

I. Self-Regulatory Organization's Description and Text of the Proposed 
Rule Change

    NFA's Interpretive Notice to NFA Compliance Rule 2-9 entitled ``NFA 
Compliance Rule 2-9: Enhanced Supervisory Requirements'' 
(``Interpretive Notice'') requires NFA Member (``Member'') firms that 
meet certain criteria identified by NFA's Board of Directors 
(``Board'') to comply with specific enhanced supervisory requirements 
(``Requirements'') that are designed to prevent abusive sales 
practices. NFA's Board is amending the Interpretive Notice to require 
all Members subject to the Requirements to maintain a record of all 
electronic written communications between associated persons (``APs'') 
and customers or potential customers, including but not limited to, 
email, text messages, instant messages, and any other communication 
that occurs in a chat room or on any social media platform. The 
proposed rule change also requires all Member firms subject to the 
Requirements of the Interpretive Notice to prepare a catalog of 
electronic written communications and for APs to maintain a log of 
those written electronic communications. The text of the proposed rule 
change to the Interpretive Notice is found in Exhibit 4.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for the Proposed Rule Change

    In its filing with the Commission, NFA 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. NFA 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
    Section 15A(k) of the Exchange Act \4\ makes NFA a national 
securities association for the limited purpose of regulating the 
activities of NFA Members who are registered as brokers or dealers in 
security futures products under Section 15(b)(11) of the Exchange 
Act.\5\ NFA's Interpretive Notice applies to all NFA Members who meet 
the criteria in the Interpretive Notice, including those that are 
registered as security futures brokers or dealers under Section 
15(b)(11) of the Exchange Act.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78o-3(k).
    \5\ 15 U.S.C. 78o(b)(11).
---------------------------------------------------------------------------

    NFA's Interpretive Notice to Compliance Rule 2-9(b) authorizes 
NFA's Board to require Members to adopt certain enhanced supervisory 
requirements based upon the regulatory background of either its APs or 
principals. The Interpretive Notice is designed to, among other things, 
minimize the likelihood of a Member engaging in deceptive sales 
practices. One of the more important Requirements with respect to 
minimizing sales practice problems is the requirement that firms make 
audio

[[Page 30204]]

recordings of all telephone conversations between APs and customers. At 
the time this Interpretive Notice was adopted, telephone communications 
were the most common method that APs used to solicit customers. 
However, since that time, other electronic written communications, such 
as text or instant messages, have become one of the primary methods of 
communication between APs and customers. NFA's Interpretive Notice, 
however, does not specifically require a Member firm subject to the 
Requirements to maintain a record of electronic written communications, 
prepare a catalog of electronic written communications, or require its 
APs to maintain a log of those communications. NFA relies on the 
catalog of communications and the AP sales solicitation logs when 
examining a Member for compliance with the Requirements.
    Given the popularity of electronic written communications, NFA's 
Board is amending the Interpretive Notice to explicitly state that all 
Members subject to the Requirements are required to maintain a record 
of all electronic written communications, including but not limited to, 
emails, text messages, instant messages, and any other communication 
that occurs in a chat room or on any social media platform. NFA's Board 
is also amending the Interpretive Notice to require Member firms 
subject to the Requirements to prepare a catalog of electronic written 
communications and require APs to maintain a log of those written 
electronic communications. This modification to the Interpretive Notice 
merely parallels the current cataloging and AP log requirement for 
telephone sales solicitations and ensures that, for firms subject to 
the Requirements, all sales solicitations--regardless of the method by 
which they occur--are maintained, cataloged, and logged by the firm's 
APs.
    Amendments to the Interpretive Notice were previously filed with 
the SEC in SR-NFA-2002-07, Exchange Act Release No. 34-47147 (Jan. 9, 
2003), 68 FR 2383 (Jan. 16, 2003); SR-NFA-2003-01, Exchange Act Release 
No. 34-47533 (Mar. 19, 2003), 68 FR 14733 (March 26, 2003); SR-NFA-
2005-01, Exchange Act Release No. 34-52808 (Nov. 18, 2005), 70 FR 71347 
(Nov. 28, 2005); SR-NFA-2006-01 Exchange Act Release No. 34-53568 (Mar. 
29, 2006), 71 FR 16850 (Apr. 4, 2006); SR-NFA-2007-03, Exchange Act 
Release No. 34-55710 (May 4, 2007), 72 FR 26858 (May 11, 2007); SR-NFA-
2007-07, Exchange Act Release No. 34-57142 (Jan. 14, 2008), 73 FR 3502 
(Jan. 18, 2008); SR-NFA-2008-02, Exchange Act Release No. 34-58709 
(Oct. 1, 2008), 73 FR 59011 (Oct. 8, 2008); SR-NFA-2010-04, Exchange 
Act Release No. 34-63602 (Dec. 22, 2010), 76 FR 202 (Jan. 3, 2011); and 
SR-NFA-2014-05, Exchange Act Release No. 34-72514 (July 2, 2014), 79 FR 
39046 (July 9, 2014).
2. Statutory Basis
    The proposed rule change is authorized by, and consistent with, 
Section 15A(k)(2)(B) of the Exchange Act.\6\ That Section requires NFA 
to have rules that are 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, 
including rules governing sales practices and advertising of security 
futures products. The proposed rule change accomplishes this by 
imposing enhanced supervisory requirements on Member firms that meet 
certain criteria that NFA's Board has determined indicates a greater 
potential for sales practice fraud to occur.
---------------------------------------------------------------------------

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

B. Self-Regulatory Organization's Statement on Burden on Competition

    At first glance, the proposed rule change appears to impose 
additional burdens on NFA Members subject to the Requirements. In 
practice, however, CFTC Regulation 1.35 \7\ requires Futures Commission 
Merchants (``FCMs''), Retail Foreign Exchange Dealers (``RFEDs''), and 
Introducing Brokers (``IBs''), as well as Commodity Pool Operators 
(``CPOs'') and Commodity Trading Advisors (``CTAs'') that are members 
of a designated contract market (``DCM'') or swaps execution facility 
(``SEF'') to maintain a record of electronic written communications. 
Therefore, the proposed rule imposes no new or additional requirements 
on FCMs, RFEDs and IBs as well as CTAs and CPOs that are Members of a 
SEF or DCM.
---------------------------------------------------------------------------

    \7\ 17 CFR 1.35.
---------------------------------------------------------------------------

    However, CFTC Regulation 1.35 does not apply to CPOs and CTAs that 
are not a member of a DCM or SEF. NFA and NFA's Member Committees 
realize that this proposed rule would impose an additional 
recordkeeping requirement and additional costs to CPOs and CTAs that 
are not a member of a DCM or a SEF. However, NFA and NFA's Member 
Committees believe that this consideration is outweighed by the fact 
that, in NFA's experience, firms that qualify to adopt the Requirements 
are more likely to engage in deceptive sales solicitations and 
requiring these firms to maintain records of electronic written 
communications may reduce the likelihood of deceptive sales practices. 
Therefore, this burden is necessary and appropriate to help minimize 
deceptive sales solicitations.
    Additionally, the other portion of the proposed rule change--the 
cataloging and AP log requirement for electronic written 
communication--poses minimal burden on impacted firms because it merely 
parallels the current cataloging and AP log requirement for telephone 
sales solicitations. This minimal burden is necessary and appropriate 
to minimize the likelihood of abusive sales practices.

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

    NFA worked with Member Committees in developing the proposed rule 
change. NFA did not, however, publish the proposed rule change to the 
membership for comment. NFA did not receive comment letters concerning 
the rule change.

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

    On December 11, 2017, the CFTC notified NFA of its determination 
not to review the proposed rule change.\8\ The proposed rule change 
became effective on January 31, 2018.
---------------------------------------------------------------------------

    \8\ See Letter, Supra note 3.
---------------------------------------------------------------------------

    At any time within 60 days of the date of effectiveness of the 
proposed rule change, the Commission, after consultation with the CFTC, 
may summarily abrogate the proposed rule change and require that the 
proposed rule change be refiled in accordance with the provisions of 
Section 19(b)(1) of the Exchange Act.\9\
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    \9\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

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 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 protected]. Please include 
File Number SR-NFA-2018-02 on the subject line.

[[Page 30205]]

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NFA-2018-02. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change 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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of such filing also will be available for inspection 
and copying at the principal office of NFA. All comments received will 
be posted without change. Persons submitting comments are cautioned 
that we do not redact or edit personal identifying information from 
comment submissions. You should submit only information that you wish 
to make publicly available. All submissions should refer to File Number 
SR-NFA-2018-02 and should be submitted on or before July 18, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(73).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-13763 Filed 6-26-18; 8:45 am]
BILLING CODE 8011-01-P



                                                                            Federal Register / Vol. 83, No. 124 / Wednesday, June 27, 2018 / Notices                                            30203

                                               Service request, the request’s acceptance               SECURITIES AND EXCHANGE                                maintain a record of all electronic
                                               date, and the authority cited by the                    COMMISSION                                             written communications between
                                               Postal Service for each request. For each                                                                      associated persons (‘‘APs’’) and
                                                                                                       [Release No. 34–83490; File No. SR–NFA–
                                               request, the Commission appoints an                                                                            customers or potential customers,
                                                                                                       2018–02]
                                               officer of the Commission to represent                                                                         including but not limited to, email, text
                                               the interests of the general public in the              Self-Regulatory Organizations;                         messages, instant messages, and any
                                               proceeding, pursuant to 39 U.S.C. 505                   National Futures Association; Notice                   other communication that occurs in a
                                               (Public Representative). Section II also                of Filing and Immediate Effectiveness                  chat room or on any social media
                                               establishes comment deadline(s)                         of Proposed Change to the Interpretive                 platform. The proposed rule change also
                                               pertaining to each request.                             Notice to NFA Compliance Rule 2–9:                     requires all Member firms subject to the
                                                                                                       Enhanced Supervisory Requirements:                     Requirements of the Interpretive Notice
                                                 The public portions of the Postal                                                                            to prepare a catalog of electronic written
                                               Service’s request(s) can be accessed via                Requiring NFA Members To Maintain a
                                                                                                       Record of All Electronic Written                       communications and for APs to
                                               the Commission’s website (http://                                                                              maintain a log of those written
                                               www.prc.gov). Non-public portions of                    Communications
                                                                                                                                                              electronic communications. The text of
                                               the Postal Service’s request(s), if any,                June 21, 2018.                                         the proposed rule change to the
                                               can be accessed through compliance                         Pursuant to Section 19(b)(7) of the                 Interpretive Notice is found in Exhibit 4.
                                               with the requirements of 39 CFR                         Securities Exchange Act of 1934                        II. Self-Regulatory Organization’s
                                               3007.40.                                                (‘‘Exchange Act’’),1 and Rule 19b–7                    Statement of the Purpose of, and
                                                 The Commission invites comments on                    under the Exchange Act,2 notice is                     Statutory Basis for the Proposed Rule
                                               whether the Postal Service’s request(s)                 hereby given that on June 12, 2018,                    Change
                                               in the captioned docket(s) are consistent               National Futures Association (‘‘NFA’’)
                                                                                                       filed with the Securities and Exchange                    In its filing with the Commission,
                                               with the policies of title 39. For                                                                             NFA included statements concerning
                                               request(s) that the Postal Service states               Commission (‘‘SEC’’ or ‘‘Commission’’)
                                                                                                       the proposed rule change described in                  the purpose of and basis for the
                                               concern market dominant product(s),                                                                            proposed rule change and discussed any
                                               applicable statutory and regulatory                     Items I, II, and III below, which Items
                                                                                                       have been prepared by NFA. The                         comments it received on the proposed
                                               requirements include 39 U.S.C. 3622, 39                                                                        rule change. The text of these statements
                                               U.S.C. 3642, 39 CFR part 3010, and 39                   Commission is publishing this notice to
                                                                                                       solicit comments on the proposed rule                  may be examined at the places specified
                                               CFR part 3020, subpart B. For request(s)                                                                       in Item IV below. NFA has prepared
                                                                                                       change from interested persons.
                                               that the Postal Service states concern                                                                         summaries, set forth in sections A, B,
                                                                                                          On November 27, 2017, NFA filed this
                                               competitive product(s), applicable                                                                             and C below, of the most significant
                                                                                                       proposed rule change with the
                                               statutory and regulatory requirements                                                                          aspects of such statements.
                                                                                                       Commodity Futures Trading
                                               include 39 U.S.C. 3632, 39 U.S.C. 3633,                 Commission (‘‘CFTC’’) and requested                    A. Self-Regulatory Organization’s
                                               39 U.S.C. 3642, 39 CFR part 3015, and                   that the CFTC make a determination                     Statement of the Purpose of, and
                                               39 CFR part 3020, subpart B. Comment                    that review of the proposed rule change                Statutory Basis for the Proposed Rule
                                               deadline(s) for each request appear in                  of NFA is not necessary. By letter dated               Change
                                               section II.                                             December 11, 2017, the CFTC notified
                                                                                                                                                              1. Purpose
                                               II. Docketed Proceeding(s)                              NFA of its determination not to review
                                                                                                       the proposed rule change.3                                Section 15A(k) of the Exchange Act 4
                                                 1. Docket No(s).: MC2018–184 and                         The text of the proposed rule change                makes NFA a national securities
                                               CP2018–258; Filing Title: USPS Request                  is available at the self-regulatory                    association for the limited purpose of
                                               to Add Priority Mail Contract 451 to                    organization’s office, on the NFA’s                    regulating the activities of NFA
                                               Competitive Product List and Notice of                  website at www.nfa.futures.org, and at                 Members who are registered as brokers
                                               Filing Materials Under Seal; Filing                     the SEC’s Public Reference Room.                       or dealers in security futures products
                                               Acceptance Date: June 21, 2018; Filing                                                                         under Section 15(b)(11) of the Exchange
                                                                                                       I. Self-Regulatory Organization’s                      Act.5 NFA’s Interpretive Notice applies
                                               Authority: 39 U.S.C. 3642 and 39 CFR                    Description and Text of the Proposed                   to all NFA Members who meet the
                                               3020.30 et seq.; Public Representative:                 Rule Change                                            criteria in the Interpretive Notice,
                                               Lawrence Fenster; Comments Due: June
                                                                                                          NFA’s Interpretive Notice to NFA                    including those that are registered as
                                               29, 2018.                                                                                                      security futures brokers or dealers under
                                                                                                       Compliance Rule 2–9 entitled ‘‘NFA
                                                 2. Docket No(s).: MC2018–185 and                      Compliance Rule 2–9: Enhanced                          Section 15(b)(11) of the Exchange Act.
                                               CP2018–259; Filing Title: USPS Request                  Supervisory Requirements’’                                NFA’s Interpretive Notice to
                                               to Add Priority Mail Contract 452 to                    (‘‘Interpretive Notice’’) requires NFA                 Compliance Rule 2–9(b) authorizes
                                               Competitive Product List and Notice of                  Member (‘‘Member’’) firms that meet                    NFA’s Board to require Members to
                                               Filing Materials Under Seal; Filing                     certain criteria identified by NFA’s                   adopt certain enhanced supervisory
                                               Acceptance Date: June 21, 2018; Filing                  Board of Directors (‘‘Board’’) to comply               requirements based upon the regulatory
                                               Authority: 39 U.S.C. 3642 and 39 CFR                    with specific enhanced supervisory                     background of either its APs or
                                               3020.30 et seq.; Public Representative:                 requirements (‘‘Requirements’’) that are               principals. The Interpretive Notice is
                                               Lawrence Fenster; Comments Due: June                    designed to prevent abusive sales                      designed to, among other things,
                                               29, 2018.                                               practices. NFA’s Board is amending the                 minimize the likelihood of a Member
                                                                                                                                                              engaging in deceptive sales practices.
daltland on DSKBBV9HB2PROD with NOTICES




                                                 This notice will be published in the                  Interpretive Notice to require all
                                                                                                       Members subject to the Requirements to                 One of the more important
                                               Federal Register.                                                                                              Requirements with respect to
                                               Stacy L. Ruble,                                           1 15  U.S.C. 78s(b)(7).
                                                                                                                                                              minimizing sales practice problems is
                                                                                                         2 17  CFR 240.19b–7.                                 the requirement that firms make audio
                                               Secretary.
                                                                                                          3 See letter from Matthew Kulkin, Director CFTC,
                                               [FR Doc. 2018–13819 Filed 6–26–18; 8:45 am]                                                                     4 15   U.S.C. 78o–3(k).
                                                                                                       to Carol A. Wooding, General Counsel, NFA
                                               BILLING CODE 7710–FW–P                                  (‘‘Letter’’).                                           5 15   U.S.C. 78o(b)(11).



                                          VerDate Sep<11>2014   16:58 Jun 26, 2018   Jkt 244001   PO 00000   Frm 00109   Fmt 4703   Sfmt 4703   E:\FR\FM\27JNN1.SGM    27JNN1


                                               30204                        Federal Register / Vol. 83, No. 124 / Wednesday, June 27, 2018 / Notices

                                               recordings of all telephone                             02, Exchange Act Release No. 34–58709                   maintain records of electronic written
                                               conversations between APs and                           (Oct. 1, 2008), 73 FR 59011 (Oct. 8,                    communications may reduce the
                                               customers. At the time this Interpretive                2008); SR–NFA–2010–04, Exchange Act                     likelihood of deceptive sales practices.
                                               Notice was adopted, telephone                           Release No. 34–63602 (Dec. 22, 2010),                   Therefore, this burden is necessary and
                                               communications were the most common                     76 FR 202 (Jan. 3, 2011); and SR–NFA–                   appropriate to help minimize deceptive
                                               method that APs used to solicit                         2014–05, Exchange Act Release No. 34–                   sales solicitations.
                                               customers. However, since that time,                    72514 (July 2, 2014), 79 FR 39046 (July                    Additionally, the other portion of the
                                               other electronic written                                9, 2014).                                               proposed rule change—the cataloging
                                               communications, such as text or instant                                                                         and AP log requirement for electronic
                                                                                                       2. Statutory Basis
                                               messages, have become one of the                                                                                written communication—poses minimal
                                               primary methods of communication                           The proposed rule change is
                                                                                                                                                               burden on impacted firms because it
                                               between APs and customers. NFA’s                        authorized by, and consistent with,
                                                                                                                                                               merely parallels the current cataloging
                                               Interpretive Notice, however, does not                  Section 15A(k)(2)(B) of the Exchange
                                                                                                                                                               and AP log requirement for telephone
                                               specifically require a Member firm                      Act.6 That Section requires NFA to have
                                                                                                                                                               sales solicitations. This minimal burden
                                               subject to the Requirements to maintain                 rules that are designed to prevent
                                                                                                                                                               is necessary and appropriate to
                                               a record of electronic written                          fraudulent and manipulative acts and
                                                                                                       practices, to promote just and equitable                minimize the likelihood of abusive sales
                                               communications, prepare a catalog of                                                                            practices.
                                               electronic written communications, or                   principles of trade, and, in general, to
                                               require its APs to maintain a log of those              protect investors and the public interest,              C. Self-Regulatory Organization’s
                                               communications. NFA relies on the                       including rules governing sales                         Statement on Comments on the
                                               catalog of communications and the AP                    practices and advertising of security                   Proposed Rule Change Received From
                                               sales solicitation logs when examining a                futures products. The proposed rule                     Members, Participants, or Others
                                               Member for compliance with the                          change accomplishes this by imposing
                                               Requirements.                                           enhanced supervisory requirements on                      NFA worked with Member
                                                  Given the popularity of electronic                   Member firms that meet certain criteria                 Committees in developing the proposed
                                               written communications, NFA’s Board                     that NFA’s Board has determined                         rule change. NFA did not, however,
                                               is amending the Interpretive Notice to                  indicates a greater potential for sales                 publish the proposed rule change to the
                                               explicitly state that all Members subject               practice fraud to occur.                                membership for comment. NFA did not
                                               to the Requirements are required to                                                                             receive comment letters concerning the
                                                                                                       B. Self-Regulatory Organization’s                       rule change.
                                               maintain a record of all electronic
                                                                                                       Statement on Burden on Competition
                                               written communications, including but                                                                           III. Date of Effectiveness of the
                                               not limited to, emails, text messages,                     At first glance, the proposed rule                   Proposed Rule Change and Timing for
                                               instant messages, and any other                         change appears to impose additional                     Commission Action
                                               communication that occurs in a chat                     burdens on NFA Members subject to the
                                               room or on any social media platform.                   Requirements. In practice, however,                       On December 11, 2017, the CFTC
                                               NFA’s Board is also amending the                        CFTC Regulation 1.35 7 requires Futures                 notified NFA of its determination not to
                                               Interpretive Notice to require Member                   Commission Merchants (‘‘FCMs’’),                        review the proposed rule change.8 The
                                               firms subject to the Requirements to                    Retail Foreign Exchange Dealers                         proposed rule change became effective
                                               prepare a catalog of electronic written                 (‘‘RFEDs’’), and Introducing Brokers                    on January 31, 2018.
                                               communications and require APs to                       (‘‘IBs’’), as well as Commodity Pool                      At any time within 60 days of the date
                                               maintain a log of those written                         Operators (‘‘CPOs’’) and Commodity                      of effectiveness of the proposed rule
                                               electronic communications. This                         Trading Advisors (‘‘CTAs’’) that are                    change, the Commission, after
                                               modification to the Interpretive Notice                 members of a designated contract                        consultation with the CFTC, may
                                               merely parallels the current cataloging                 market (‘‘DCM’’) or swaps execution                     summarily abrogate the proposed rule
                                               and AP log requirement for telephone                    facility (‘‘SEF’’) to maintain a record of              change and require that the proposed
                                               sales solicitations and ensures that, for               electronic written communications.                      rule change be refiled in accordance
                                               firms subject to the Requirements, all                  Therefore, the proposed rule imposes no                 with the provisions of Section 19(b)(1)
                                               sales solicitations—regardless of the                   new or additional requirements on                       of the Exchange Act.9
                                               method by which they occur—are                          FCMs, RFEDs and IBs as well as CTAs
                                               maintained, cataloged, and logged by                    and CPOs that are Members of a SEF or                   IV. Solicitation of Comments
                                               the firm’s APs.                                         DCM.                                                      Interested persons are invited to
                                                  Amendments to the Interpretive                          However, CFTC Regulation 1.35 does
                                                                                                                                                               submit written data, views, and
                                               Notice were previously filed with the                   not apply to CPOs and CTAs that are not
                                                                                                                                                               arguments concerning the foregoing,
                                               SEC in SR–NFA–2002–07, Exchange Act                     a member of a DCM or SEF. NFA and
                                                                                                                                                               including whether the proposed rule
                                               Release No. 34–47147 (Jan. 9, 2003), 68                 NFA’s Member Committees realize that
                                                                                                                                                               change is consistent with the Exchange
                                               FR 2383 (Jan. 16, 2003); SR–NFA–2003–                   this proposed rule would impose an
                                               01, Exchange Act Release No. 34–47533                                                                           Act. Comments may be submitted by
                                                                                                       additional recordkeeping requirement
                                               (Mar. 19, 2003), 68 FR 14733 (March 26,                                                                         any of the following methods:
                                                                                                       and additional costs to CPOs and CTAs
                                               2003); SR–NFA–2005–01, Exchange Act                     that are not a member of a DCM or a                     Electronic Comments
                                               Release No. 34–52808 (Nov. 18, 2005),                   SEF. However, NFA and NFA’s Member
                                               70 FR 71347 (Nov. 28, 2005); SR–NFA–                    Committees believe that this                              • Use the Commission’s internet
                                               2006–01 Exchange Act Release No. 34–                    consideration is outweighed by the fact                 comment form (http://www.sec.gov/
daltland on DSKBBV9HB2PROD with NOTICES




                                               53568 (Mar. 29, 2006), 71 FR 16850                      that, in NFA’s experience, firms that                   rules/sro.shtml); or
                                               (Apr. 4, 2006); SR–NFA–2007–03,                         qualify to adopt the Requirements are                     • Send an email to rule-comments@
                                               Exchange Act Release No. 34–55710                       more likely to engage in deceptive sales                sec.gov. Please include File Number SR–
                                               (May 4, 2007), 72 FR 26858 (May 11,                     solicitations and requiring these firms to              NFA–2018–02 on the subject line.
                                               2007); SR–NFA–2007–07, Exchange Act
                                               Release No. 34–57142 (Jan. 14, 2008), 73                  6 15   U.S.C. 78o–3(k).                                8 See   Letter, Supra note 3.
                                               FR 3502 (Jan. 18, 2008); SR–NFA–2008–                     7 17   CFR 1.35.                                       9 15   U.S.C. 78s(b)(1).



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                                                                                Federal Register / Vol. 83, No. 124 / Wednesday, June 27, 2018 / Notices                                           30205

                                               Paper Comments                                            SECURITIES AND EXCHANGE                                  administration of the Nasdaq/UTP Plan
                                                                                                         COMMISSION                                               and as a ‘‘Ministerial Amendment’’
                                                 • Send paper comments in triplicate                                                                              under Section XVI of the Plan. As a
                                               to Secretary, Securities and Exchange                     [Release No. 34–83493; File No. S7–24–89]
                                                                                                                                                                  result, the Amendment was effective
                                               Commission, 100 F Street NE,                                                                                       upon filing and was submitted by the
                                                                                                         Joint Industry Plan; Notice of Filing
                                               Washington, DC 20549–1090.                                                                                         Chairman of the Plan’s Operating
                                                                                                         and Immediate Effectiveness of the
                                               All submissions should refer to File                      Forty-Third Amendment to the Joint                       Committee. The Commission is
                                               Number SR–NFA–2018–02. This file                          Self-Regulatory Organization Plan                        publishing this notice to solicit
                                               number should be included on the                          Governing the Collection,                                comments from interested persons on
                                                                                                         Consolidation and Dissemination of                       the proposed Amendment. Set forth in
                                               subject line if email is used. To help the
                                                                                                         Quotation and Transaction Information                    Sections I and II is the statement of the
                                               Commission process and review your
                                                                                                         for Nasdaq-Listed Securities Traded on                   purpose and summary of the
                                               comments more efficiently, please use                                                                              Amendment, along with the information
                                               only one method. The Commission will                      Exchanges on an Unlisted Trading
                                                                                                         Privileges Basis                                         required by Rules 608(a) and 601(a)
                                               post all comments on the Commission’s                                                                              under the Act, prepared and submitted
                                               internet website (http://www.sec.gov/                     June 21, 2018.                                           by the Participants to the Commission.
                                               rules/sro.shtml). Copies of the                              Pursuant to Section 11A of the
                                               submission, all subsequent                                                                                         I. Rule 608(a)
                                                                                                         Securities Exchange Act of 1934
                                               amendments, all written statements                        (‘‘Act’’),1 and Rule 608 thereunder,2                    A. Purpose of the Amendments
                                               with respect to the proposed rule                         notice is hereby given that on June 5,                     The Amendment effectuates changes
                                               change that are filed with the                            2018, the Participants 3 in the Joint Self-              that certain Participants have made to
                                               Commission, and all written                               Regulatory Organization Plan Governing                   their names and addresses, as set forth
                                               communications relating to the                            the Collection, Consolidation and                        in Section I(A) of the UTP Plan and
                                               proposed rule change between the                          Dissemination of Quotation and                           updates the listing of Participant
                                               Commission and any person, other than                     Transaction Information for Nasdaq-                      identifying codes set forth in Section
                                               those that may be withheld from the                       Listed Securities Traded on Exchanges                    VIII(C) of the UTP Plan.
                                               public in accordance with the                             on an Unlisted Trading Privileges Basis
                                               provisions of 5 U.S.C. 552, will be                       (‘‘NASDAQ/UTP Plan,’’ ‘‘UTP Plan’’ or                    B. Governing or Constituent Documents
                                               available for website viewing and                         ‘‘Plan’’) filed with the Securities and                    Not applicable.
                                               printing in the Commission’s Public                       Exchange Commission (‘‘Commission’’)
                                                                                                         a proposal to amend the NASDAQ/UTP                       C. Implementation of the Amendments
                                               Reference Room, 100 F Street NE,
                                               Washington, DC 20549, on official                         Plan.4 The amendment represents                            Because the Amendment constitutes a
                                               business days between the hours of                        Amendment No. 43 to the NASDAQ/                          ‘‘Ministerial Amendment’’ under
                                                                                                         UTP Plan (‘‘Amendment’’). The                            Section XVI of the UTP Plan, the
                                               10:00 a.m. and 3:00 p.m. Copies of such
                                                                                                         Amendment seeks to effectuate changes                    Chairman of the UTP Plan’s Operating
                                               filing also will be available for
                                                                                                         that certain Participants have made to                   Committee may submit the Amendment
                                               inspection and copying at the principal                                                                            to the Commission on behalf of the
                                                                                                         their names and addresses, as set forth
                                               office of NFA. All comments received                                                                               Participants in the UTP Plan. Because
                                                                                                         in Section I(A) of the Nasdaq/UTP Plan
                                               will be posted without change. Persons                                                                             the Participants have designated the
                                                                                                         and to update the listing of Participant
                                               submitting comments are cautioned that                    identifying codes set forth in Section                   Amendment as concerned solely with
                                               we do not redact or edit personal                         VIII(C) of the Plan.                                     the administration of the Plan, the
                                               identifying information from comment                         Pursuant to Rule 608(b)(3)(ii) under                  Amendment is effective upon filing
                                               submissions. You should submit only                       Regulation NMS,5 the Participants have                   with the Commission.
                                               information that you wish to make                         designated the Amendment as
                                               publicly available. All submissions                                                                                D. Development and Implementation
                                                                                                         concerned solely with the                                Phases
                                               should refer to File Number SR–NFA–
                                               2018–02 and should be submitted on or                       1 15  U.S.C. 78k–1.                                      Not applicable.
                                               before July 18, 2018.                                       2 17  CFR 242.608.
                                                                                                                                                                  E. Analysis of Impact on Competition
                                                                                                            3 The Participants are: Cboe BYX Exchange, Inc.;
                                                 For the Commission, by the Division of                  Cboe BZX Exchange, Inc.; Cboe EDGA Exchange,               The Participants assert that the
                                               Trading and Markets, pursuant to delegated                Inc.; Cboe EDGX Exchange, Inc.; Cboe Exchange,           Amendment does not impose any
                                               authority.10                                              Inc.; Chicago Stock Exchange, Inc.; Financial
                                                                                                                                                                  burden on competition because it
                                                                                                         Industry Regulatory Authority, Inc.; Investors
                                               Eduardo A. Aleman,                                        Exchange LLC; Nasdaq BX, Inc.; Nasdaq ISE, LLC;          simply effectuates a change in the
                                               Assistant Secretary.                                      Nasdaq PHLX LLC; The Nasdaq Stock Market LLC;            names and addresses of certain
                                               [FR Doc. 2018–13763 Filed 6–26–18; 8:45 am]               New York Stock Exchange LLC; NYSE Arca, Inc.;            Participants. For the same reasons, the
                                                                                                         NYSE American LLC; and NYSE National, Inc.
                                               BILLING CODE 8011–01–P                                    (collectively, the ‘‘Participants’’).
                                                                                                                                                                  Participants do not believe that the
                                                                                                            4 The Plan governs the collection, processing, and    Amendment introduces terms that are
                                                                                                         dissemination on a consolidated basis of quotation       unreasonably discriminatory for
                                                                                                         information and transaction reports in Eligible          purposes of Section 11A(c)(1)(D) of the
                                                                                                         Securities for each of its Participants. This            Exchange Act.
                                                                                                         consolidated information informs investors of the
                                                                                                         current quotation and recent trade prices of Nasdaq      F. Written Understanding or Agreements
daltland on DSKBBV9HB2PROD with NOTICES




                                                                                                         securities. It enables investors to ascertain from one
                                                                                                         data source the current prices in all the markets
                                                                                                                                                                  Relating to Interpretation of, or
                                                                                                         trading Nasdaq securities. The Plan serves as the        Participation in, Plan
                                                                                                         required transaction reporting plan for its                Not applicable.
                                                                                                         Participants, which is a prerequisite for their
                                                                                                         trading Eligible Securities. See Securities Exchange     G. Approval by Sponsors in Accordance
                                                                                                         Act Release No. 55647 (April 19, 2007), 72 FR
                                                                                                         20891 (April 26, 2007).
                                                                                                                                                                  With Plan
                                                 10 17   CFR 200.30–3(a)(73).                               5 17 CFR 242.608(b)(3)(ii).                             See Item I.C. above.


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Document Created: 2018-11-06 09:53:14
Document Modified: 2018-11-06 09:53:14
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation83 FR 30203 

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