Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change To Amend the Sixth Amended and Restated Operating Agreement of the Exchange, 25341-25344 [2015-10312]
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Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices
13. Subcommittees: The Board, in
coordination with the DFO, has the
authority to create subcommittees or
working groups.
14. Recordkeeping: The records of the
Board shall be handled according to
section 2, General Records Schedule 26,
and governing OPM policies and
procedures. These records will be
available for public inspection and
copying, subject to the Freedom of
Information Act of 1966 (5 U.S.C. 552,
as amended).
U.S. Office of Personnel Management.
Katherine L. Archuleta,
Director.
[FR Doc. 2015–10297 Filed 5–1–15; 8:45 am]
BILLING CODE 6325–63–P
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COMMISSION
Submission for OMB Review;
Comment Request
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of FOIA Services,
100 F Street NE., Washington, DC
20549–2736.
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Extension:
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The amount of time needed to comply
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total 429 registered transfer agents,
approximately 9.1% (or 39 registrants)
would be required to complete only
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each registrant approximately 30
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The aggregate annual burden on all 429
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172.5 hours + 1,650 hours) and the
average annual burden per transfer
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÷ 429).
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Comments should be directed to: (i)
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Exchange Commission, Office of
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Office of Management and Budget,
Room 10102, New Executive Office
Building, Washington, DC 20503, or by
sending an email to:
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Pamela Dyson, Director/Chief
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this notice.
Dated: April 28, 2015.
Brent J. Fields,
Secretary.
[FR Doc. 2015–10285 Filed 5–1–15; 8:45 am]
BILLING CODE 8011–01–P
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–74825; File No. SR–
NYSEMKT–2015–27]
Self-Regulatory Organizations; NYSE
MKT LLC; Notice of Filing of Proposed
Rule Change To Amend the Sixth
Amended and Restated Operating
Agreement of the Exchange
April 28, 2015.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’)2 and Rule 19b–4 thereunder,3
notice is hereby given that, on April 17,
2015, NYSE MKT LLC (the ‘‘Exchange’’
or ‘‘NYSE MKT’’) filed with the
Securities and Exchange Commission
(the ‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the self-regulatory
organization. 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 to amend the
Sixth Amended and Restated Operating
Agreement of the Exchange (‘‘Operating
Agreement’’) to (1) establish a
Regulatory Oversight Committee
(‘‘ROC’’) as a committee of the board of
directors of the Exchange (the ‘‘Board’’),
and (2) remove the requirement that the
independent directors that make up the
majority of the Board also be directors
of Intercontinental Exchange, Inc., the
Exchange’s parent company. The text of
the proposed rule change is available on
the Exchange’s Web site at
www.nyse.com, 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
self-regulatory organization 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 those 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 parts of such
statements.
1 15
U.S.C.78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
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Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices
A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend the
Operating Agreement to (a) establish a
ROC as a committee of the Board, and
(b) remove the requirement that the
independent directors that make up the
majority of the Board also be directors
of Intercontinental Exchange, Inc.
(‘‘ICE’’), the Exchange’s parent
company.
Creation of a ROC
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The proposed ROC would have the
responsibility to independently monitor
the Exchange’s regulatory operations.4
To effectuate this change, the Exchange
proposes to amend Section 2.03(h) of
the Operating Agreement to add a
subsection (ii) providing for a ROC and
delineating its composition and
functions. The proposed new Section
2.03(h)(ii) of the Operating Agreement
would be substantially similar to Article
III, Section 5(c) of the By-Laws of the
NASDAQ Stock Market LLC
(‘‘Committees Composed Solely of
Directors’’).5
4 NYSE Regulation, Inc. (‘‘NYSE Regulation’’), a
not-for-profit subsidiary of the Exchange’s affiliate
New York Stock Exchange LLC (‘‘NYSE’’), performs
all of the Exchange’s regulatory functions pursuant
to an intercompany Regulatory Services Agreement
(‘‘RSA’’) that gives the Exchange the contractual
right to review NYSE Regulation’s performance.
NYSE Regulation performs regulatory functions for
the Exchange’s affiliate NYSE Arca, Inc. (‘‘NYSE
Arca’’) pursuant to a similar intercompany RSA.
NYSE Arca has submitted a similar proposal to
establish a ROC with primary responsibility for
overseeing regulatory operations. See SR–
NYSEArca-2015–29.
5 See Securities Exchange Act Release No. 34–
53128 (January 13, 2006), 71 FR 3550 (January 23,
2006) (File No. 10–131) (‘‘Release No. 34–53128’’)
(order granting application of NASDAQ Stock
Market LLC (‘‘NASDAQ’’) for registration as a
national securities exchange). As noted below,
members of the NASDAQ ROC must satisfy
NASDAQ’s public director requirements in addition
to its independent director requirements. NASDAQ
defines a public director as ‘‘a Director who has no
material business relationship with a broker or
dealer, the Company or its affiliates, or FINRA.’’
NASDAQ Bylaws, Article I(y). The Exchange does
not have separate public director requirements and
does not distinguish between public and
independent directors but notes that, like the
NASDAQ public director requirement, in order to
meet the Exchange’s independence requirements, a
director must ‘‘not have any material relationships’’
with ICE and its subsidiaries. In addition, among
other limitations, in order to be found independent,
a director may not be a member, allied member, or
employed by a member organization of the
Exchange. See Independence Policy of Board of
Directors of NYSE MKT LLC, available at https://
wallstreet.cch.com/MKT/pdf/independence_
policy.pdf. See also Securities Exchange Act
Release No. 67564 (August 1, 2012), 77 FR 47161
(August 7, 2012) (SR–NYSE–2012–17; SR–
NYSEArca-2012–59; SR–NYSEMKT–2012–07)
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In particular, Section 2.03(h)(ii)
would provide that the Board shall
appoint a ROC on an annual basis.
Proposed Section 2.03(h)(ii) would
describe the composition of the ROC.
Proposed Section 2.03(h)(ii) would also
describe the functions and authority of
the ROC. The proposed ROC’s
responsibilities would be to:
• Oversee the Exchange’s regulatory
and self-regulatory organization
responsibilities and evaluate the
adequacy and effectiveness of the
Exchange’s regulatory and selfregulatory organization responsibilities;
• Assess the Exchange’s regulatory
performance; and
• Advise and make recommendations
to the Board or other committees of the
Board about the Exchange’s regulatory
compliance, effectiveness and plans.6
In furtherance of these functions, the
proposed new subsection of the
Operating Agreement would provide the
ROC with the authority and obligation
to review the regulatory budget of the
Exchange and specifically inquire into
the adequacy of resources available in
the budget for regulatory activities.
Under the proposed amendment, the
ROC would be charged with meeting
regularly with the Chief Regulatory
Officer (‘‘CRO’’) in executive session
and, in consultation with the
Exchange’s Chief Executive Officer,
establishing the goals, assessing the
performance, and recommending the
CRO’s compensation. Finally, under the
proposed rule, the ROC would be
responsible for keeping the Board
informed with respect to the foregoing
matters.7
The Exchange proposes that the ROC
would consist of at least three members,
each of whom would be a director of
either the Exchange or of NYSE
Regulation and who satisfies the
(approving NYSE MKT’s director independence
policy).
6 These three core responsibilities of the proposed
ROC would be substantially similar to those of
other SROs’ ROCs. See, e.g., NASDAQ Bylaws,
Article III, Section 5 (‘‘NASDAQ Bylaws’’);
Securities Exchange Act Release No. 34–58375
(August 18, 2008), 73 FR 49498, 49502 (August 21,
2008) (File No. 10–182) (‘‘Release No. 34–58375’’)
(approving application of BATS Exchange, Inc.
(‘‘BATS’’) seeking registration as a national
securities exchange); Securities Exchange Act
Release No. 34–61698 (March 10, 2010), 75 FR
13151, 13161 (March 12, 2010) (‘‘Release No. 34–
61698’’) (approving application of EDGX Exchange,
Inc. and EDGA Exchange, Inc., seeking registration
as a national securities exchange); and Amended
and Restated By-Laws of Miami International
Securities Exchange, LLC, Article IV, Section 4.5(c).
7 The obligations of the proposed ROC would be
substantially similar to those of other SROs’ ROCs.
See, e.g., NASDAQ Bylaws, Article III, Section 5;
Bylaws of NASDAQ OMX PHLX LLC, Article V,
Section 5–2; Third Amended and Restated Bylaws
of BATS Exchange, Inc., Article V, Section 6(c).
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independence requirements of the
Exchange.8 The Exchange believes that
a ROC comprised of at least three
independent members is appropriate.
The size and composition of the
proposed ROC would be largely the
same as that of the ROCs of other selfregulatory organizations (‘‘SROs’’), with
the exception of the possibility to
include independent directors of NYSE
Regulation on the ROC.9 A ROC with at
least three independent directors has
been recognized as one of several
measures that can help ensure the
independence of the regulatory function
from the market operations and
commercial interests of a national
securities exchange.10
Further, proposed Section 2.03(h)(ii)
would provide that the Board may, on
affirmative vote of a majority of
directors, at any time remove a member
of the ROC for cause. Proposed Section
2.03(h)(ii) would also provide that a
failure of the member to qualify as
independent under the independence
policy would constitute a basis to
remove a member of the ROC for cause.
Similar authority is found in the bylaws
governing the ROCs of other SROs.11 In
addition, proposed Section 2.03(h)(ii)
would provide that, if the term of office
of a ROC committee member terminates
under this section, and the remaining
term of office of such committee
member at the time of termination is not
more than three months, during the
period of vacancy the ROC would not be
deemed to be in violation of its
compositional requirements by virtue of
the vacancy. Once again, this is
consistent with the rules and bylaws of
8 The Exchange’s independence requirements are
set forth in the Independence Policy of the Board
of Directors of the Exchange. See supra, note 5.
9 See e.g., NASDAQ By-laws, Article III, Section
5(c) (specifying a ROC comprising three directors
who must satisfy both NASDAQ’s public director
and independent director requirements); Third
Amended and Restated Bylaws of BATS Exchange,
Inc., Article V, Section 6(c) (‘‘BATS Bylaws’’)
(specifying a ROC comprising three non-industry
(i.e., public) directors); and Chicago Board Options
Exchange, Incorporated (‘‘CBOE’’) Bylaws, Article
IV, Section 4.5 (specifying a ROC of at least three
directors all of whom shall be ‘‘non-industry’’
directors).
10 See, e.g., Release No. 34–53128, 71 FR at 3555
(NASDAQ); Release No. 34–58375, 73 FR at 49502
(BATS); Securities Exchange Act Release No. 34–
61152 (December 10, 2009), 74 FR 66699, 66704–
705 (December 16, 2009) (File No. 10–191)
(approving application of C2 Options Exchange,
Incorporated, seeking registration as a national
securities exchange); and Release No. 34–61698, 75
FR at 13161.
11 See e.g., BATS Bylaws, Article V, Section 2(a)
(‘‘the Chairman may, at any time, with or without
cause, remove any member of a committee so
appointed, with the approval of the Board.’’);
Second Amended and Restated By-laws of National
Stock Exchange, Inc., Article V, Section 5.2 (same).
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other SROs.12 Finally, the Exchange
proposes to add text to Section 2.03(h)
providing that vacancies in the
membership of any board committee
would be filled by the Exchange
Board.13
The Exchange proposes that members
of the ROC could be independent
directors of either the Exchange Board
or the NYSE Regulation board. The
proposed eligibility of independent
directors of the NYSE Regulation board
for the ROC would allow individuals to
be members of the ROC who have direct
experience in overseeing the adequacy
and effectiveness of the Exchange’s and
its affiliates’ regulatory programs.
The Exchange believes that the
proposed rule change creating an
independent board committee to
oversee the adequacy and effectiveness
of the performance of its self-regulatory
responsibilities is consistent with
previously approved rule changes for
other self-regulatory organizations and
would enable the Exchange to
harmonize its corporate governance
with that of its industry peers.14
Moreover, the Exchange believes that
the proposed adoption of a ROC would
ensure the continued independence of
the regulatory process.15 The
fundamental hallmarks of regulatory
independence—determinations
regarding the Exchange’s regulatory
plan, programs, budget and staffing
made by individuals independent of
Exchange management and a CRO
having general supervision of the
regulatory operations of the Exchange
and reporting to a ROC—are integral to
the proposal.16
Exchange Independent Directors
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Section 2.03(a)(i) of the Operating
Agreement, which governs Board
composition, provides that a majority of
the Exchange’s directors shall be U.S.
12 See e.g., NASDAQ Bylaws, Article III, Section
2(b).
13 NASDAQ has the same provision. See Second
Amended Limited Liability Co. Agreement of the
NASDAQ Stock Market LLC, Section 9(g).
14 See NASDAQ Bylaws, Article III, Section 5(c);
BATS Bylaws, Article V, Section 6(c).
15 See, e.g., Securities Exchange Act Release No.
34–48946 (December 17, 2003), 68 FR 74678, 74687
(August 21, 2008) (SR–NYSE–2003–34).
16 See, e.g., Release No. 34–53128, 71 FR at 3555.
In connection with its acquisition by the NYSE in
2008, the Exchange’s ROC was eliminated and the
Exchange contracted with NYSE Regulation to
perform all of its regulatory functions. See note 4,
supra. The approval order noted that ‘‘the
governance of NYSE Regulation will provide a
comparable level of independence that a ROC
would provide.’’ See Securities Exchange Act
Release No. 34–58673 (September 29, 2008), 73 FR
57707 (October 3, 2008) (SR-Amex-2008–62, SR–
NYSE–2008–60) (‘‘Amex Approval Order’’).
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Persons 17 who are members of the
board of directors of ICE that satisfy the
Exchange’s independence
requirements.18 Such directors are
defined as ‘‘ICE Independent Directors’’
in the Operating Agreement. The
Exchange proposes to amend Section
2.03(a)(i) of the Operating Agreement to
remove the requirement that the
independent directors that make up the
majority of the Board also be directors
of ICE, to redefine ‘‘ICE Independent
Directors’’ to remove the reference to
ICE, and to make conforming changes in
both Section 2.03(a)(i) and Section
2.03(a)(ii). The majority of directors of
the Exchange Board would continue to
satisfy the company independence
policy.
The Exchange believes that
eliminating the requirement that the
independent directors of the Exchange
also be directors of ICE would allow the
Exchange to broaden the pool of
potential Board members, resulting in a
more diversified Board membership,
while still ensuring the directors’
independence. Eliminating the
requirement that the independent
directors of the Exchange also be
directors of ICE would also make the
Exchange’s Board requirements more
consistent with those of its affiliate
NYSE Arca, which do not require any of
its directors to be directors of ICE.19
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Exchange Act 20 in
general, and with Section 6(b)(1) 21 in
particular, in that it enables the
Exchange to be so organized as to have
the capacity to be able to carry out the
purposes of the Exchange Act and to
comply, and to enforce compliance by
its exchange members and persons
associated with its exchange members,
with the provisions of the Exchange Act,
the rules and regulations thereunder,
and the rules of the Exchange.
17 Pursuant to Section 2.03(a)(1) [sic] of the
Operating Agreement, a director is a ‘‘U.S. Person’’
if, as of the date of his or her most recent election
or appointment to the Board, his or her domicile is,
and for the immediately preceding 24 months has
been, the United States. The Exchange does not
propose to amend this requirement.
18 See note 5, supra.
19 See Amended and Restated NYSE Arca Bylaws,
Article III, Section 3.02. The Exchange notes that its
affiliate NYSE has also submitted a proposal to
amend its Operating Agreement to remove the
requirement that the independent directors that
make up the majority of the Exchange Board also
be directors of ICE, and to redefine ‘‘ICE
Independent Directors’’ to remove the reference to
ICE. See SR–NYSE–2015–16.
20 15 U.S.C. 78f(b).
21 15 U.S.C. 78f(b)(1).
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The proposed change would create an
independent board committee to
oversee the adequacy and effectiveness
of the performance of the Exchange’s
self-regulatory responsibilities. The
proposed ROC, similar in composition
and functions to the approved ROCs of
other SROs, would be designed to
oversee the Exchange’s regulatory and
self-regulatory organization
responsibilities and evaluate the
adequacy and effectiveness of the
Exchange’s regulatory and selfregulatory organization responsibilities;
assess the Exchange’s regulatory
performance; and advise and make
recommendations to the Board or other
committees of the Board about the
Exchange’s regulatory compliance
effectiveness and plans.
As noted, the Exchange proposes that
members of the ROC could be
independent directors of either the
Exchange Board or the NYSE Regulation
board. The Exchange believes that
proposing to allow independent
directors of the NYSE Regulation board
to be eligible for the ROC would provide
the choice to include these individuals
whose have direct experience in
overseeing the adequacy and
effectiveness of the Exchange’s and its
affiliates’ regulatory programs.
Accordingly, the Exchange believes that
the proposed rule change would
contribute to the orderly operation of
the Exchange and would enable the
Exchange to be so organized as to have
the capacity to carry out the purposes of
the Exchange Act and comply and
enforce compliance by its members and
persons associated with its members,
with the provisions of the Exchange Act.
The Exchange therefore believes that
approval of the amendment to the
Bylaws [sic] is consistent with Section
6(b)(1) of the Exchange Act.
Further, the Exchange believes its
proposed change to remove the
requirement that the independent
directors that make up the majority of
the Exchange Board also be ICE
directors and redefine ‘‘ICE Independent
Directors’’ to remove the reference to
ICE is consistent with the Exchange Act.
As noted above, this change would
allow the Exchange to consider
including individuals on its Board that
are not already members of the ICE
board. The Exchange believes that a
more diversified pool of Board members
would allow it to include individuals on
its Board that could focus on the unique
responsibilities of an SRO. This change
would also make the Exchange’s Board
requirements more consistent with
those of its affiliate NYSE Arca, which
does not require its directors to be ICE
directors. For these reasons, the
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Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices
Exchange believes that the proposed
rule change would contribute to the
orderly operation of the Exchange and
would enable the Exchange to be so
organized as to have the capacity to
carry out the purposes of the Exchange
Act and comply and enforce compliance
with the provisions of the Exchange Act
by its members and persons associated
with its members. The Exchange
therefore believes that approval of the
proposed is consistent with Section
6(b)(1) of the Exchange Act.
The Exchange also believes that this
filing furthers the objectives of Section
6(b)(5) of the Exchange Act 22 because
the proposed rule change would be
consistent with and facilitate a
governance and regulatory structure that
is designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, to
remove impediments to, and perfect the
mechanism of a free and open market
and a national market system and, in
general, to protect investors and the
public interest.
As discussed above, the Exchange
believes that the proposed creation of a
ROC composed of independent directors
would align the Exchange’s corporate
governance practices with other SROs
that have adopted a ROC to monitor the
adequacy and effectiveness of the
regulatory program, assess regulatory
performance, and assist the Board in
reviewing the regulatory plan and the
overall effectiveness of the regulatory
function. Moreover, the Exchange
believes that the proposed ROC
structure would also sufficiently
‘‘insulate’’ the regulatory functions from
the Exchange’s ‘‘market and other
commercial interests’’ in order for the
Exchange to carry out its regulatory
obligations.23 The Exchange believes
that eliminating the requirement that
the independent directors of the
Exchange also be directors of ICE would
allow the Exchange to include
individuals on its Board that have
expertise it believes is necessary for its
unique role as an SRO, because not all
of the independent directors would
have to be directors of ICE. The
Exchange believes that the proposed
rule change is therefore consistent with
and facilitates a governance and
regulatory structure that furthers the
objectives of Section 6(b)(5) of the
Exchange Act. The independent
22 15
U.S.C. 78f(b)(5).
23 Release No. 34–53128, 71 FR at 3556.
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oversight of the Exchange’s regulatory
functions by the proposed ROC is also
designed to protect investors as well as
the public interest.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change would impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Exchange Act.
The proposed rule change is not
intended to address competitive issues
but rather is concerned solely with the
administration and functioning of the
Exchange’s Board.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of
publication of this notice in the Federal
Register or up to 90 days (i) as the
Commission may designate if it finds
such longer period to be appropriate
and publishes its reasons for so finding
or (ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) by order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEMKT–2015–27 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEMKT–2015–27. This
file number should be included on the
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For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.24
Brent J. Fields,
Secretary.
[FR Doc. 2015–10312 Filed 5–1–15; 8:45 am]
BILLING CODE 8011–01–P
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:
PO 00000
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 (https://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 the
filing will also be available for
inspection and copying at the NYSE’s
principal office and on its Internet Web
site at www.nyse.com. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEMKT–2015–27and should be
submitted on or before May 26, 2015.
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–74822; File No. SR–BX–
2015–023]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by NASDAQ
OMX BX, Inc. Relating to Fees, Dues
and Other Charges
April 28, 2015.
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 April 17,
2015, NASDAQ OMX BX, Inc. (‘‘BX’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission (‘‘SEC’’ or
24 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
E:\FR\FM\04MYN1.SGM
04MYN1
]]>Agencies
[Federal Register Volume 80, Number 85 (Monday, May 4, 2015)]
[Notices]
[Pages 25341-25344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10312]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-74825; File No. SR-NYSEMKT-2015-27]
Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of
Proposed Rule Change To Amend the Sixth Amended and Restated Operating
Agreement of the Exchange
April 28, 2015.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'')\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on April 17, 2015, NYSE MKT LLC (the ``Exchange'' or ``NYSE
MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C.78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend the Sixth Amended and Restated
Operating Agreement of the Exchange (``Operating Agreement'') to (1)
establish a Regulatory Oversight Committee (``ROC'') as a committee of
the board of directors of the Exchange (the ``Board''), and (2) remove
the requirement that the independent directors that make up the
majority of the Board also be directors of Intercontinental Exchange,
Inc., the Exchange's parent company. The text of the proposed rule
change is available on the Exchange's Web site at www.nyse.com, 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 self-regulatory organization
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 those 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 parts of such statements.
[[Page 25342]]
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend the Operating Agreement to (a)
establish a ROC as a committee of the Board, and (b) remove the
requirement that the independent directors that make up the majority of
the Board also be directors of Intercontinental Exchange, Inc.
(``ICE''), the Exchange's parent company.
Creation of a ROC
The proposed ROC would have the responsibility to independently
monitor the Exchange's regulatory operations.\4\ To effectuate this
change, the Exchange proposes to amend Section 2.03(h) of the Operating
Agreement to add a subsection (ii) providing for a ROC and delineating
its composition and functions. The proposed new Section 2.03(h)(ii) of
the Operating Agreement would be substantially similar to Article III,
Section 5(c) of the By-Laws of the NASDAQ Stock Market LLC
(``Committees Composed Solely of Directors'').\5\
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\4\ NYSE Regulation, Inc. (``NYSE Regulation''), a not-for-
profit subsidiary of the Exchange's affiliate New York Stock
Exchange LLC (``NYSE''), performs all of the Exchange's regulatory
functions pursuant to an intercompany Regulatory Services Agreement
(``RSA'') that gives the Exchange the contractual right to review
NYSE Regulation's performance. NYSE Regulation performs regulatory
functions for the Exchange's affiliate NYSE Arca, Inc. (``NYSE
Arca'') pursuant to a similar intercompany RSA. NYSE Arca has
submitted a similar proposal to establish a ROC with primary
responsibility for overseeing regulatory operations. See SR-
NYSEArca-2015-29.
\5\ See Securities Exchange Act Release No. 34-53128 (January
13, 2006), 71 FR 3550 (January 23, 2006) (File No. 10-131)
(``Release No. 34-53128'') (order granting application of NASDAQ
Stock Market LLC (``NASDAQ'') for registration as a national
securities exchange). As noted below, members of the NASDAQ ROC must
satisfy NASDAQ's public director requirements in addition to its
independent director requirements. NASDAQ defines a public director
as ``a Director who has no material business relationship with a
broker or dealer, the Company or its affiliates, or FINRA.'' NASDAQ
Bylaws, Article I(y). The Exchange does not have separate public
director requirements and does not distinguish between public and
independent directors but notes that, like the NASDAQ public
director requirement, in order to meet the Exchange's independence
requirements, a director must ``not have any material
relationships'' with ICE and its subsidiaries. In addition, among
other limitations, in order to be found independent, a director may
not be a member, allied member, or employed by a member organization
of the Exchange. See Independence Policy of Board of Directors of
NYSE MKT LLC, available at https://wallstreet.cch.com/MKT/pdf/independence_policy.pdf. See also Securities Exchange Act Release
No. 67564 (August 1, 2012), 77 FR 47161 (August 7, 2012) (SR-NYSE-
2012-17; SR-NYSEArca-2012-59; SR-NYSEMKT-2012-07) (approving NYSE
MKT's director independence policy).
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In particular, Section 2.03(h)(ii) would provide that the Board
shall appoint a ROC on an annual basis. Proposed Section 2.03(h)(ii)
would describe the composition of the ROC. Proposed Section 2.03(h)(ii)
would also describe the functions and authority of the ROC. The
proposed ROC's responsibilities would be to:
Oversee the Exchange's regulatory and self-regulatory
organization responsibilities and evaluate the adequacy and
effectiveness of the Exchange's regulatory and self-regulatory
organization responsibilities;
Assess the Exchange's regulatory performance; and
Advise and make recommendations to the Board or other
committees of the Board about the Exchange's regulatory compliance,
effectiveness and plans.\6\
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\6\ These three core responsibilities of the proposed ROC would
be substantially similar to those of other SROs' ROCs. See, e.g.,
NASDAQ Bylaws, Article III, Section 5 (``NASDAQ Bylaws'');
Securities Exchange Act Release No. 34-58375 (August 18, 2008), 73
FR 49498, 49502 (August 21, 2008) (File No. 10-182) (``Release No.
34-58375'') (approving application of BATS Exchange, Inc. (``BATS'')
seeking registration as a national securities exchange); Securities
Exchange Act Release No. 34-61698 (March 10, 2010), 75 FR 13151,
13161 (March 12, 2010) (``Release No. 34-61698'') (approving
application of EDGX Exchange, Inc. and EDGA Exchange, Inc., seeking
registration as a national securities exchange); and Amended and
Restated By-Laws of Miami International Securities Exchange, LLC,
Article IV, Section 4.5(c).
---------------------------------------------------------------------------
In furtherance of these functions, the proposed new subsection of
the Operating Agreement would provide the ROC with the authority and
obligation to review the regulatory budget of the Exchange and
specifically inquire into the adequacy of resources available in the
budget for regulatory activities. Under the proposed amendment, the ROC
would be charged with meeting regularly with the Chief Regulatory
Officer (``CRO'') in executive session and, in consultation with the
Exchange's Chief Executive Officer, establishing the goals, assessing
the performance, and recommending the CRO's compensation. Finally,
under the proposed rule, the ROC would be responsible for keeping the
Board informed with respect to the foregoing matters.\7\
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\7\ The obligations of the proposed ROC would be substantially
similar to those of other SROs' ROCs. See, e.g., NASDAQ Bylaws,
Article III, Section 5; Bylaws of NASDAQ OMX PHLX LLC, Article V,
Section 5-2; Third Amended and Restated Bylaws of BATS Exchange,
Inc., Article V, Section 6(c).
---------------------------------------------------------------------------
The Exchange proposes that the ROC would consist of at least three
members, each of whom would be a director of either the Exchange or of
NYSE Regulation and who satisfies the independence requirements of the
Exchange.\8\ The Exchange believes that a ROC comprised of at least
three independent members is appropriate. The size and composition of
the proposed ROC would be largely the same as that of the ROCs of other
self-regulatory organizations (``SROs''), with the exception of the
possibility to include independent directors of NYSE Regulation on the
ROC.\9\ A ROC with at least three independent directors has been
recognized as one of several measures that can help ensure the
independence of the regulatory function from the market operations and
commercial interests of a national securities exchange.\10\
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\8\ The Exchange's independence requirements are set forth in
the Independence Policy of the Board of Directors of the Exchange.
See supra, note 5.
\9\ See e.g., NASDAQ By-laws, Article III, Section 5(c)
(specifying a ROC comprising three directors who must satisfy both
NASDAQ's public director and independent director requirements);
Third Amended and Restated Bylaws of BATS Exchange, Inc., Article V,
Section 6(c) (``BATS Bylaws'') (specifying a ROC comprising three
non-industry (i.e., public) directors); and Chicago Board Options
Exchange, Incorporated (``CBOE'') Bylaws, Article IV, Section 4.5
(specifying a ROC of at least three directors all of whom shall be
``non-industry'' directors).
\10\ See, e.g., Release No. 34-53128, 71 FR at 3555 (NASDAQ);
Release No. 34-58375, 73 FR at 49502 (BATS); Securities Exchange Act
Release No. 34-61152 (December 10, 2009), 74 FR 66699, 66704-705
(December 16, 2009) (File No. 10-191) (approving application of C2
Options Exchange, Incorporated, seeking registration as a national
securities exchange); and Release No. 34-61698, 75 FR at 13161.
---------------------------------------------------------------------------
Further, proposed Section 2.03(h)(ii) would provide that the Board
may, on affirmative vote of a majority of directors, at any time remove
a member of the ROC for cause. Proposed Section 2.03(h)(ii) would also
provide that a failure of the member to qualify as independent under
the independence policy would constitute a basis to remove a member of
the ROC for cause. Similar authority is found in the bylaws governing
the ROCs of other SROs.\11\ In addition, proposed Section 2.03(h)(ii)
would provide that, if the term of office of a ROC committee member
terminates under this section, and the remaining term of office of such
committee member at the time of termination is not more than three
months, during the period of vacancy the ROC would not be deemed to be
in violation of its compositional requirements by virtue of the
vacancy. Once again, this is consistent with the rules and bylaws of
[[Page 25343]]
other SROs.\12\ Finally, the Exchange proposes to add text to Section
2.03(h) providing that vacancies in the membership of any board
committee would be filled by the Exchange Board.\13\
---------------------------------------------------------------------------
\11\ See e.g., BATS Bylaws, Article V, Section 2(a) (``the
Chairman may, at any time, with or without cause, remove any member
of a committee so appointed, with the approval of the Board.'');
Second Amended and Restated By-laws of National Stock Exchange,
Inc., Article V, Section 5.2 (same).
\12\ See e.g., NASDAQ Bylaws, Article III, Section 2(b).
\13\ NASDAQ has the same provision. See Second Amended Limited
Liability Co. Agreement of the NASDAQ Stock Market LLC, Section
9(g).
---------------------------------------------------------------------------
The Exchange proposes that members of the ROC could be independent
directors of either the Exchange Board or the NYSE Regulation board.
The proposed eligibility of independent directors of the NYSE
Regulation board for the ROC would allow individuals to be members of
the ROC who have direct experience in overseeing the adequacy and
effectiveness of the Exchange's and its affiliates' regulatory
programs.
The Exchange believes that the proposed rule change creating an
independent board committee to oversee the adequacy and effectiveness
of the performance of its self-regulatory responsibilities is
consistent with previously approved rule changes for other self-
regulatory organizations and would enable the Exchange to harmonize its
corporate governance with that of its industry peers.\14\ Moreover, the
Exchange believes that the proposed adoption of a ROC would ensure the
continued independence of the regulatory process.\15\ The fundamental
hallmarks of regulatory independence--determinations regarding the
Exchange's regulatory plan, programs, budget and staffing made by
individuals independent of Exchange management and a CRO having general
supervision of the regulatory operations of the Exchange and reporting
to a ROC--are integral to the proposal.\16\
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\14\ See NASDAQ Bylaws, Article III, Section 5(c); BATS Bylaws,
Article V, Section 6(c).
\15\ See, e.g., Securities Exchange Act Release No. 34-48946
(December 17, 2003), 68 FR 74678, 74687 (August 21, 2008) (SR-NYSE-
2003-34).
\16\ See, e.g., Release No. 34-53128, 71 FR at 3555. In
connection with its acquisition by the NYSE in 2008, the Exchange's
ROC was eliminated and the Exchange contracted with NYSE Regulation
to perform all of its regulatory functions. See note 4, supra. The
approval order noted that ``the governance of NYSE Regulation will
provide a comparable level of independence that a ROC would
provide.'' See Securities Exchange Act Release No. 34-58673
(September 29, 2008), 73 FR 57707 (October 3, 2008) (SR-Amex-2008-
62, SR-NYSE-2008-60) (``Amex Approval Order'').
---------------------------------------------------------------------------
Exchange Independent Directors
Section 2.03(a)(i) of the Operating Agreement, which governs Board
composition, provides that a majority of the Exchange's directors shall
be U.S. Persons \17\ who are members of the board of directors of ICE
that satisfy the Exchange's independence requirements.\18\ Such
directors are defined as ``ICE Independent Directors'' in the Operating
Agreement. The Exchange proposes to amend Section 2.03(a)(i) of the
Operating Agreement to remove the requirement that the independent
directors that make up the majority of the Board also be directors of
ICE, to redefine ``ICE Independent Directors'' to remove the reference
to ICE, and to make conforming changes in both Section 2.03(a)(i) and
Section 2.03(a)(ii). The majority of directors of the Exchange Board
would continue to satisfy the company independence policy.
---------------------------------------------------------------------------
\17\ Pursuant to Section 2.03(a)(1) [sic] of the Operating
Agreement, a director is a ``U.S. Person'' if, as of the date of his
or her most recent election or appointment to the Board, his or her
domicile is, and for the immediately preceding 24 months has been,
the United States. The Exchange does not propose to amend this
requirement.
\18\ See note 5, supra.
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The Exchange believes that eliminating the requirement that the
independent directors of the Exchange also be directors of ICE would
allow the Exchange to broaden the pool of potential Board members,
resulting in a more diversified Board membership, while still ensuring
the directors' independence. Eliminating the requirement that the
independent directors of the Exchange also be directors of ICE would
also make the Exchange's Board requirements more consistent with those
of its affiliate NYSE Arca, which do not require any of its directors
to be directors of ICE.\19\
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\19\ See Amended and Restated NYSE Arca Bylaws, Article III,
Section 3.02. The Exchange notes that its affiliate NYSE has also
submitted a proposal to amend its Operating Agreement to remove the
requirement that the independent directors that make up the majority
of the Exchange Board also be directors of ICE, and to redefine
``ICE Independent Directors'' to remove the reference to ICE. See
SR-NYSE-2015-16.
---------------------------------------------------------------------------
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \20\ in general, and with Section
6(b)(1) \21\ in particular, in that it enables the Exchange to be so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of the Exchange.
---------------------------------------------------------------------------
\20\ 15 U.S.C. 78f(b).
\21\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------
The proposed change would create an independent board committee to
oversee the adequacy and effectiveness of the performance of the
Exchange's self-regulatory responsibilities. The proposed ROC, similar
in composition and functions to the approved ROCs of other SROs, would
be designed to oversee the Exchange's regulatory and self-regulatory
organization responsibilities and evaluate the adequacy and
effectiveness of the Exchange's regulatory and self-regulatory
organization responsibilities; assess the Exchange's regulatory
performance; and advise and make recommendations to the Board or other
committees of the Board about the Exchange's regulatory compliance
effectiveness and plans.
As noted, the Exchange proposes that members of the ROC could be
independent directors of either the Exchange Board or the NYSE
Regulation board. The Exchange believes that proposing to allow
independent directors of the NYSE Regulation board to be eligible for
the ROC would provide the choice to include these individuals whose
have direct experience in overseeing the adequacy and effectiveness of
the Exchange's and its affiliates' regulatory programs. Accordingly,
the Exchange believes that the proposed rule change would contribute to
the orderly operation of the Exchange and would enable the Exchange to
be so organized as to have the capacity to carry out the purposes of
the Exchange Act and comply and enforce compliance by its members and
persons associated with its members, with the provisions of the
Exchange Act. The Exchange therefore believes that approval of the
amendment to the Bylaws [sic] is consistent with Section 6(b)(1) of the
Exchange Act.
Further, the Exchange believes its proposed change to remove the
requirement that the independent directors that make up the majority of
the Exchange Board also be ICE directors and redefine ``ICE Independent
Directors'' to remove the reference to ICE is consistent with the
Exchange Act. As noted above, this change would allow the Exchange to
consider including individuals on its Board that are not already
members of the ICE board. The Exchange believes that a more diversified
pool of Board members would allow it to include individuals on its
Board that could focus on the unique responsibilities of an SRO. This
change would also make the Exchange's Board requirements more
consistent with those of its affiliate NYSE Arca, which does not
require its directors to be ICE directors. For these reasons, the
[[Page 25344]]
Exchange believes that the proposed rule change would contribute to the
orderly operation of the Exchange and would enable the Exchange to be
so organized as to have the capacity to carry out the purposes of the
Exchange Act and comply and enforce compliance with the provisions of
the Exchange Act by its members and persons associated with its
members. The Exchange therefore believes that approval of the proposed
is consistent with Section 6(b)(1) of the Exchange Act.
The Exchange also believes that this filing furthers the objectives
of Section 6(b)(5) of the Exchange Act \22\ because the proposed rule
change would be consistent with and facilitate a governance and
regulatory structure that is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------
\22\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
As discussed above, the Exchange believes that the proposed
creation of a ROC composed of independent directors would align the
Exchange's corporate governance practices with other SROs that have
adopted a ROC to monitor the adequacy and effectiveness of the
regulatory program, assess regulatory performance, and assist the Board
in reviewing the regulatory plan and the overall effectiveness of the
regulatory function. Moreover, the Exchange believes that the proposed
ROC structure would also sufficiently ``insulate'' the regulatory
functions from the Exchange's ``market and other commercial interests''
in order for the Exchange to carry out its regulatory obligations.\23\
The Exchange believes that eliminating the requirement that the
independent directors of the Exchange also be directors of ICE would
allow the Exchange to include individuals on its Board that have
expertise it believes is necessary for its unique role as an SRO,
because not all of the independent directors would have to be directors
of ICE. The Exchange believes that the proposed rule change is
therefore consistent with and facilitates a governance and regulatory
structure that furthers the objectives of Section 6(b)(5) of the
Exchange Act. The independent oversight of the Exchange's regulatory
functions by the proposed ROC is also designed to protect investors as
well as the public interest.
---------------------------------------------------------------------------
\23\ Release No. 34-53128, 71 FR at 3556.
---------------------------------------------------------------------------
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change would
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not intended to address competitive issues but rather is
concerned solely with the administration and functioning of the
Exchange's Board.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or up to 90 days (i) as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or (ii) as to which the self-regulatory
organization consents, the Commission will:
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be 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 (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NYSEMKT-2015-27 on the subject line.
Paper Comments
Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2015-27.
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 (https://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 the filing will also be
available for inspection and copying at the NYSE's principal office and
on its Internet Web site at www.nyse.com. All comments received will be
posted without change; the Commission does not edit personal
identifying information from submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEMKT-2015-27and should be submitted
on or before May 26, 2015.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\24\
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\24\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-10312 Filed 5-1-15; 8:45 am]
BILLING CODE 8011-01-P
