July 2, 2011
July 2, 2011
Elizabeth M. Murphy, Secretary
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549-0609
Re: SEC Release No. 34-64687
File No. SR-FINRA-2011-013
Dear Ms. Murphy:
We appreciate the opportunity to comment on SEC Release No. 34-64687, dated June 16, 2011, in which the SEC granted accelerated approval, as amended, of Financial Industry Regulatory Authority's ("FINRA") proposed rule change establishing a registration category, a qualification examination and a continuing education requirement for certain operations personnel ("FINRA Rule"). We represent a number of Canadian-financial services firms with U.S. broker-dealer affiliates who are FINRA members. Notwithstanding the amendment, we continue to object to the FINRA Rule as applied to our clients as an improper extraterritorial application of U.S. laws by a self-regulatory organization for the reasons set forth in our comment letter dated April 8, 2011, addressing SEC Release No. 34-64080, attached hereto as Exhibit A.
Although Amendment 1 to the FINRA Rule provides that FINRA may accept foreign qualifications in lieu of the Operations Professional qualification examination should FINRA determine that such foreign qualifications are consistent with the purposes of the FINRA Rule, the concerns we raised in Exhibit A still stand. The amendment does not carve out from the FINRA Rule's applicability persons employed by foreign back office operations, such as those of our clients. The amendment merely exempts those of our clients' employees who hold as yet undetermined Canadian qualifications from the rule's examination requirement. Even were our clients' employees exempt from examination under this provision, they would still be subject to FINRA's registration and continuing education requirements. As explained in Exhibit A, this reach by FINRA into the back-office operations of Canadian broker-dealers engaged in clearing trades in Canadian securities conducted on Canadian exchanges is in conflict with the Exchange Act, SEC Rule 15a-6, Supreme Court precedent and NAFTA.
Thank you for providing us with the opportunity to provide comments on the SEC's approval of the FINRA Rule. We would be pleased to discuss any comments herein, or provide the Commission with any additional assistance as it proceeds. Please do not hesitate to contact me at (212) 715-1130 if you have any questions.
Very truly yours,
D. Grant Vingoe(Attached File #1: finra2011013-7.pdf)