8970 Federal Register / Vol. 86, No. 26 / Wednesday, February 10, 2021 / Notices 

13 15 U.S.C. 78s(b)(3)(A). 

14 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires a self-regulatory organization to 

give the Commission written notice of its intent to 

file the proposed rule change, along with a brief 

description and text of the proposed rule change, 

at least five business days prior to the date of filing 

of the proposed rule change, or such shorter time 

as designated by the Commission. The Exchange 

has satisfied this requirement. 

15 17 CFR 240.19b–4(f)(6). 

16 17 CFR 240.19b–4(f)(6)(iii). 

17For purposes only of waiving the 30-day 

operative delay, the Commission has also 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 18 17 CFR 200.30–3(a)(12). 

promoting easy comparisons among the 

various Nasdaq affiliated exchanges’ 

Rulebooks. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition not 

necessary or appropriate in furtherance 

of the purposes of the Act. The 

Exchange believes that the proposed 

amendments do not impose an undue 

burden on competition because the 

amendments to relocate the equity and 

general rules are non-substantive. This 

rule change is intended to bring greater 

clarity to the Exchange’s Rules and to 

promote easy comparisons among the 

various Nasdaq affiliated exchanges’ 

Rulebooks. Renumbering, re-lettering, 

deleting reserved rules and amending 

cross-references will bring greater 

transparency to the Exchange’s Rules. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change does not: (i) Significantly affect 

the protection of investors or the public 

interest; (ii) impose any significant 

burden on competition; and (iii) become 

operative for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 13 and Rule 19b4(f)(6) thereunder.14

A proposed rule change filed under 

Rule 19b–4(f)(6) 15 normally does not 

become operative for 30 days after the 

date of the filing. However, pursuant to 

Rule 19b-4(f)(6)(iii),16 the Commission 

may designate a shorter time if such 

action is consistent with the protection 

of investors and the public interest. The 

Exchange has asked the Commission to 

waive the 30-day operative delay. 

Waiver of the operative delay would 

allow the Exchange to immediately 

relocate its rules and continue to file 

other rules that are affected by this 

relocation in a timely manner. The 

Commission believes that waiver of the 

30-day operative delay is consistent 

with the protection of investors and the 

public interest. Accordingly, the 

Commission waives the 30-day 

operative delay and designates the 

proposal operative upon filing.17

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. If the 

Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

change should be approved or 

disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include File Number SR– 

Phlx–2021–04 on the subject line. 

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–Phlx–2021–04. 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 the 

filing also will be available for 

inspection and copying at the principal 

office of the Exchange. 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 available publicly. All 

submissions should refer to File 

Number SR–Phlx–2021–04 and should 

be submitted on or before March 3, 

2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–02709 Filed 2–9–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–91066; File No. SR–FINRA– 

2020–038] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Notice of Filing of 

Amendment No. 1 and Order Instituting 

Proceedings To Determine Whether To 

Approve or Disapprove the Proposed 

Rule Change, as Modified by 

Amendment No. 1, to FINRA Rules 

5122 (Private Placements of Securities 

Issued by Members) and 5123 (Private 

Placements of Securities) That Would 

Require Members To File Retail 

Communications Concerning Private 

Placement Offerings That Are Subject 

to Those Rules’ Filing Requirements 

February 4, 2021. 

I. Introduction 

On October 28, 2020, Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change SR–FINRA– 

2020–038 (‘‘Proposed Rule Change’’) 

pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

Federal Register / Vol. 86, No. 26 / Wednesday, February 10, 2021 / Notices 8971 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See infra note 4. 

4See Exchange Act Release No. 90302 (Nov. 2, 

2020), 85 FR 71120 (Nov. 6, 2020) (File No. SR– 

FINRA–2020–038) (‘‘Notice’’). 

5See letter from Joseph Savage, Vice President, 

Office of General Counsel Regulatory Policy, 

FINRA, to Daniel Fisher, Branch Chief, Division of 

Trading and Markets, Commission, dated December 

11, 2020. 

6Amendment No. 1 is available at https://

www.finra.org/sites/default/files/2021-01/SRFINRA-2020-038-Amendment1.pdf. 

7 15 U.S.C. 78s(b)(2)(B). 

8A ‘‘control entity’’ means any entity that 

controls or is under common control with a 

member, or that is controlled by a member or its 

associated persons. See FINRA Rule 5122(a)(2)–(3); 

see also Notice at note 3. 

9Because of the types of private placements 

exempt from the application of Rule 5122, FINRA 

believes that the rule applies predominately to 

private placements sold to retail investors. See 

Notice at 71121. 

10See Notice at 71120. 

11See supra note 9. 

12Rules 5122 and 5123 do not enumerate the 

types of information that might be considered 

‘‘other offering documents.’’ However, FINRA has 

stated previously that an example of ‘‘other offering 

document’’ is ‘‘[a]ny other type of document that 

sets forth the terms of the offering.’’ See 

‘‘Frequently Asked Questions (FAQ) About Private 

Placements,’’ Question #10, available on 

www.finra.org. The terms of an offering include 

facts such as the amount of proceeds that the issuer 

intends to raise, the type of security, descriptions 

or illustrations of the intended use of proceeds, and 

explanations of tax benefits or other information 

that would be relevant to an investor when deciding 

whether to make an investment. See Notice at 

71121. 

13Rule 2210(a)(5) defines a ‘‘retail 

communication’’ as any written (including 

electronic) communication that is distributed or 

made available to more than 25 retail investors 

within any 30 calendar-day period. See Regulatory 

Notice 20–21 (July 2020) (stating that a member firm 

that assists in the preparation of a private 

placement memorandum or other offering 

document should expect that it will be considered 

a communication with the public by that member 

firm for purposes of Rule 2210 (Communications 

with the Public)); see also letter from Joseph P. 

Savage, Vice President and Counsel, Office of 

General Counsel, FINRA, to Vanessa Countryman, 

Secretary, Commission, dated January 12, 2021, 

available at https://www.sec.gov/comments/sr-finra2020-038/srfinra2020038-8233135-227749.pdf. 

14Specifically, Amendment No. 1 would limit the 

filing requirement of the Proposed Rule Change to 

those retail communications that ‘‘promote or 

recommend’’ a private placement, rather than any 

retail communication that ‘‘concerns’’ a private 

placement, as originally proposed. 

15 15 U.S.C. 78s(b)(2)(B). 

16 Id. 

(‘‘Exchange Act’’) 1 and Rule 19b–4 2

thereunder to amend FINRA Rules 5122 

(Private Placements of Securities Issued 

by Members) and 5123 (Private 

Placements of Securities) to require 

members to file retail communications 

concerning private placement offerings 

that are subject to those rules’ filing 

requirements.3 The Proposed Rule 

Change was published for public 

comment in the Federal Register on 

November 6, 2020.4 On December 11, 

2020, FINRA consented to an extension 

of the time period in which the 

Commission must approve the Proposed 

Rule Change, disapprove the Proposed 

Rule Change, or institute proceedings to 

determine whether to approve or 

disapprove the Proposed Rule Change to 

February 4, 2021.5 On January 12, 2021, 

FINRA filed an amendment to modify 

the Proposed Rule Change 

(‘‘Amendment No. 1’’).6 The 

Commission is publishing this order 

pursuant to Section 19(b)(2)(B) of the 

Exchange Act 7 to solicit comments on 

Amendment No. 1 from interested 

persons and to institute proceedings to 

determine whether to approve or 

disapprove the Proposed Rule Change, 

as modified by Amendment No.1 

(‘‘Amended Proposed Rule Change’’). 

II. Description of the Amended 

Proposed Rule Change 

For certain private placements of 

unregistered securities issued by a 

FINRA member or a control entity 8

(‘‘member private offerings’’), FINRA 

Rule 5122 requires the member or 

control entity to provide prospective 

investors 9 with a private placement 

memorandum (‘‘PPM’’), term sheet or 

other offering document that discloses 

the intended use of the offering 

proceeds, the offering expenses and the 

amount of selling compensation that 

will be paid to the member and its 

associated persons. Among other things, 

the current rule also requires a member 

to file the PPM, term sheet or other 

offering document with the FINRA 

Corporate Financing Department at or 

prior to the first time the document is 

provided to any prospective investor, as 

well as any amendments to such 

documents within 10 days of being 

provided to any investor or prospective 

investor.10 Similarly, for certain private 

placements 11 of unregistered securities 

issued by a non-member, FINRA Rule 

5123 requires members or control 

persons to file with FINRA any PPM, 

term sheet or other offering document,12

including any material amended 

versions thereof, used in connection 

with an offering within 15 calendar days 

of the date of first sale. 

FINRA proposes amendments to 

Rules 5122 and 5123 to require 

members or control persons to file 

private placement retail 

communications 13 with FINRA, in 

addition to the currently required PPMs, 

term sheets, and other offering 

documents. Specifically, the Amended 

Proposed Rule Change would require 

members or control persons to file with 

the FINRA Corporate Financing 

Department at, or prior to, the first time 

the document is provided to any 

prospective investor, any retail 

communication that ‘‘promotes or 

recommends’’ a private placement, 

rather than any retail communication 

that ‘‘concerns’’ a private placement, as 

originally proposed.14

III. Proceedings To Determine Whether 

To Approve or Disapprove File No. SR– 

FINRA–2020–038 and Grounds for 

Disapproval Under Consideration 

The Commission is instituting 

proceedings pursuant to Section 

19(b)(2)(B) of the Exchange Act to 

determine whether the Amended 

Proposed Rule Change should be 

approved or disapproved.15 Institution 

of proceedings is appropriate at this 

time in view of the legal and policy 

issues raised by the Amended Proposed 

Rule Change. Institution of proceedings 

does not indicate that the Commission 

has reached any conclusions with 

respect to the Amended Proposed Rule 

Change. 

Pursuant to Section 19(b)(2)(B) of the 

Exchange Act,16 the Commission is 

providing notice of the grounds for 

disapproval under consideration. The 

Commission is instituting proceedings 

to allow for additional analysis and 

input concerning whether the Amended 

Proposed Rule Change is consistent 

with the Exchange Act and the rules 

thereunder. 

IV. Request for Written Comments 

The Commission requests that 

interested persons provide written 

submissions of their views, data, and 

arguments with respect to the issues 

identified above, as well as any other 

concerns they may have with the 

Amended Proposed Rule Change. 

Specifically, the Commission is 

requesting comment on whether the 

Amended Proposed Rule Change 

adequately addresses commenters’ 

concerns regarding the scope of the 

proposed filing requirement in light of 

the regulatory goals of improving the 

quality of broker-dealer private 

placement communications and 

strengthening FINRA’s ability to 

monitor for potential violations of its 

rules governing members’ 

communications with the public. In 

particular, the Commission invites the 

written views of interested persons 

concerning whether the Amended 

Proposed Rule Change is consistent 

with the Exchange Act and the rules 

thereunder. 

Although there do not appear to be 

any issues relevant to approval or 

8972 Federal Register / Vol. 86, No. 26 / Wednesday, February 10, 2021 / Notices 

17Section 19(b)(2) of the Act, as amended by the 

Securities Acts Amendments of 1975, Public Law 

94–29, 89 Stat. 97 (1975), grants the Commission 

flexibility to determine what type of proceeding— 

either oral or notice and opportunity for written 

comments—is appropriate for consideration of a 

particular proposal by a self-regulatory 

organization. See Securities Acts Amendments of 

1975, Report of the Senate Committee on Banking, 

Housing and Urban Affairs to Accompany S. 249, 

S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). 

18 17 CFR 200.30–3(a)(12); 17 CFR 200.30– 

3(a)(57). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3The Commission approved Nasdaq Rule 5750 in 

Securities Exchange Act Release No. 89110 (June 

22, 2020), 85 FR 38461 (June 26, 2020) (SR– 

NASDAQ–2020–032). 

4The Commission has issued an order, upon 

which the Trust may rely, granting certain 

exemptive relief under the 1940 Act. See 

Investment Company Act Release No. 34181 (Jan. 

21, 2021) (‘‘Exemptive Order’’). 

5The Registration Statement is available on the 

Commission’s website at https://www.sec.gov/ 

Archives/edgar/data/1414040/ 

000139834420019856/fp0058104_485apos.htm. 

disapproval that would be facilitated by 

an oral presentation of views, data, and 

arguments, the Commission will 

consider, pursuant to Rule 19b–4, any 

request for an opportunity to make an 

oral presentation.17

Interested persons are invited to 

submit written data, views, and 

arguments regarding whether the 

Amended Proposed Rule Change should 

be approved or disapproved by February 

24, 2021. Any person who wishes to file 

a rebuttal to any other person’s 

submission must file that rebuttal by 

March 8, 2021. 

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 No. SR– 

FINRA–2020–038 on the subject line. 

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 No. 

SR–FINRA–2020–038. 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 Amended Proposed 

Rule Change that are filed with the 

Commission, and all written 

communications relating to the 

Amended 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 FINRA. 

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 available 

publicly. 

All submissions should refer to File 

No. SR–FINRA–2020–038 and should be 

submitted on or before February 24, 

2021. If comments are received, any 

rebuttal comments should be submitted 

on or before March 8, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–02715 Filed 2–9–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–91062; File No. SR– 

NASDAQ–2021–005] 

Self-Regulatory Organizations; The 

Nasdaq Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Relating to the 

ALPS Active REIT ETF of ALPS ETF 

Trust To List and Trade Shares of the 

Fund Under Nasdaq Rule 5750 

February 4, 2021. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on January 

25, 2021, The Nasdaq Stock Market LLC 

(‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘SEC’’ or ‘‘Commission’’) the proposed 

rule change as described in Items I and 

II below, which Items have been 

prepared by the Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes a rule change 

relating to the ALPS Active REIT ETF 

(the ‘‘Fund’’) of ALPS ETF Trust (the 

‘‘Trust’’), to list and trade shares of the 

Fund under Nasdaq Rule 5750 (‘‘Proxy 

Portfolio Shares’’). The shares of the 

Fund are collectively referred to herein 

as the ‘‘Shares.’’ 

(b) Not applicable. [sic] 

The text of the proposed rule change 

is available on the Exchange’s website at 

https://listingcenter.nasdaq.com/ 

rulebook/nasdaq/rules, at the principal 

office of the Exchange, and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange 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. The 

Exchange 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 

The Commission has approved the 

listing and trading of Proxy Portfolio 

Shares under Nasdaq Rule 5750, which 

governs the listing and trading of Proxy 

Portfolio Shares on the Exchange.3

The Fund is an actively-managed 

exchange-traded fund (‘‘ETF’’). The 

Shares are offered by the Trust, which 

was established as a Delaware statutory 

trust on September 13, 2007.4 The Trust, 

which is registered with the 

Commission as an investment company 

under the Investment Company Act of 

1940 (the ‘‘1940 Act’’), has filed a 

registration statement on Form N–1A 

(‘‘Registration Statement’’) relating to 

the Fund with the Commission.5 The 

Fund is a series of the Trust. ALPS 

Advisors, Inc. (‘‘Adviser’’) is the 

investment adviser to the Fund. ALPS 

Portfolio Solutions Distributor, Inc. is 

the principal underwriter and 

distributor of the Fund’s Shares. ALPS 

Fund Services, Inc. acts as the 

administrator and provides fund