Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc., 96102-96107 [2016-31490]

Download as PDF 96102 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices 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– BX–2016–068 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. asabaliauskas on DSK3SPTVN1PROD with NOTICES All submissions should refer to File Number SR–BX–2016–068. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–BX– 2016–068, and should be submitted on or before January 19, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.16 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2016–31476 Filed 12–28–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–79678; File No. SR– NYSEArca–2016–167] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange’s Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc. December 22, 2016. 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 December 16, 2016, NYSE Arca, Inc. (the ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II 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 in connection with the proposed acquisition of National Stock Exchange, Inc. (‘‘NSX’’) by the Exchange’s parent the NYSE Group, Inc. (‘‘NYSE Group’’), to amend certain organizational documents of NYSE Group, NYSE Holdings LLC (‘‘NYSE Holdings’’), Intercontinental Exchange Holdings, Inc. (‘‘ICE Holdings’’), and Intercontinental Exchange, Inc. (‘‘ICE’’). 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 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 16 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 PO 00000 Frm 00147 Fmt 4703 Sfmt 4703 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. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Background On December 14, 2016, ICE entered into an agreement with the NSX pursuant to which its wholly-owned subsidiary NYSE Group would acquire all of the outstanding capital stock of the NSX (the ‘‘Acquisition’’). As a result of the Acquisition, the NSX would be renamed NYSE National, Inc. (‘‘NYSE National’’) and would be operated as a wholly-owned subsidiary of NYSE Group. NYSE Group is a wholly-owned subsidiary of NYSE Holdings, which is in turn 100% owned by ICE Holdings. ICE, a public company listed on the New York Stock Exchange LLC (the ‘‘NYSE’’), owns 100% of ICE Holdings. Following the Acquisition, NYSE National would continue to be registered as a national securities exchange and as a separate selfregulatory organization (‘‘SRO’’). As such, NYSE National would continue to have separate rules, membership rosters, and listings that would be distinct from the rules, membership rosters, and listings of the three other registered national securities exchanges and SROs owned by NYSE Group, namely, the NYSE, NYSE MKT and the Exchange (together, the ‘‘NYSE Exchanges’’).4 In connection with the Acquisition and as discussed more fully below, the following organizational documents of NYSE Group and its intermediary and ultimate parent entities would be amended: • ICE bylaws and director independence policy, • ICE Holdings bylaws and certificate of incorporation, • NYSE Holdings operating agreement, and • NYSE Group bylaws and certificate of incorporation. These proposed changes would consist of technical and conforming amendments to reflect the proposed new ownership of NYSE National by the NYSE Group, and, indirectly, ICE.5 4 The NYSE Exchanges are referred to as the U.S. Regulated Subsidiaries in the corporate documents proposed to be amended in this rule filing. 5 The proposed revisions are also discussed in the NYSE and NYSE MKT companion rule filings related to the Acquisition. See SR–NYSE–2016–90 & SR–NYSEMKT–2016–122. E:\FR\FM\29DEN1.SGM 29DEN1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices The proposed rule changes would be effected following approval of this rule filing no later than February 28, 2017, on a date determined by its Board. Proposed Rule Change The Exchange proposes that, in connection with the Acquisition, the Commission approve the organizational documents of ICE and its wholly-owned subsidiaries ICE Holdings and NYSE Group and the Independence Policy of the Board of Directors of Intercontinental Exchange, Inc. (‘‘ICE Independence Policy’’), all of which are to be amended concurrently with the Acquisition to reflect ownership of NYSE National. The current organizational documents of ICE and its wholly-owned subsidiaries provide certain protections to the NYSE Exchanges that are designed to protect and facilitate their self-regulatory functions, including certain restrictions on the ability to vote and own shares of ICE.6 In general, the organizational documents of ICE and its wholly-owned subsidiaries are being amended to provide similar protections to the NYSE National as are currently provided to the NYSE Exchanges under those documents. In addition, obsolete references to NYSE Market (DE), Inc. (formerly NYSE Market, Inc.) (‘‘NYSE Market (DE)’’), and NYSE Regulation, Inc. (‘‘NYSE Regulation’’) found in various documents are proposed to be deleted.7 Proposed Seventh Amended and Restated Bylaws of Intercontinental Exchange, Inc. (‘‘ICE Bylaws’’) asabaliauskas on DSK3SPTVN1PROD with NOTICES The ICE Bylaws would be amended to reflect the Acquisition and incorporate NYSE National in the ICE Bylaws’ existing voting and ownership restrictions, provisions relating to the qualifications of directors and officers and their submission to jurisdiction, compliance with the federal securities laws, access to books and records, and other matters related to its control of the U.S. Regulated Subsidiaries. 6 See Securities Exchange Release No. 70210 (August 15, 2013), 78 FR 51758 (August 21, 2013) (approving rule changes related to NYSE Euronext becoming a wholly owned subsidiary of ICE (then called IntercontinentalExchange Group, Inc.)). 7 NYSE Market (DE) and NYSE Regulation were previously parties to a Delegation Agreement whereby the NYSE delegated certain regulatory functions to NYSE Regulation and certain market functions to NYSE Market (DE). The Delegation Agreement was terminated when the NYSE reintegrated its regulatory and market functions. As a result, the two entities ceased being regulated subsidiaries. See Securities Exchange Act Release No. 75991 (September 28, 2015), 80 FR 59837 (October 2, 2015). NYSE Regulation has since been merged out of existence. VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 Specifically, the ICE Bylaws would be amended as follows: • The definition of ‘‘U.S. Regulated Subsidiaries’’ in Article III, Section 3.15, which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, the Exchange, NYSE Arca Equities, and NYSE MKT, would be amended to include NYSE National. The obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted. • Article VIII (Confidential Information), Section 8.1, would be amended to extend to NYSE National the same protection regarding confidential information provided to the NYSE Exchanges and NYSE Arca Equities, and to remove the obsolete references to NYSE Market (DE) and NYSE Regulation. • Article XI, Section 11.3, provides that, for so long as ICE controls any of the U.S. Regulated Subsidiaries, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the U.S. Regulated Subsidiaries or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE. Section 11.3 would be amended to include the NYSE National, and to delete the obsolete references to NYSE Market (DE) and NYSE Regulation. The ICE Bylaws would be further amended to add a new Article XII (Voting and Ownership Limitations). New Section 12.1.a of Article XII would provide that, subject to its fiduciary obligations under applicable law, for so long as ICE directly or indirectly controls NYSE National (or its successor), the board of directors of ICE shall not adopt any resolution pursuant to clause (b) of Section A.2 of Article V of the certificate of incorporation of ICE (which relates to ICE board of directors approval of ownership of ICE capital stock by a person together with its related persons in excess of 20%), unless the board of directors of ICE shall have determined that: • In the case of a resolution to approve the exercise of voting rights in excess of 20% of the then outstanding votes entitled to be cast on such matter, neither such person nor any of its related persons is an ETP Holder of NYSE National; • in the case of a resolution to approve the entering into of an agreement, plan or other arrangement under circumstances that would result in shares of stock of ICE that would be PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 96103 subject to such agreement, plan or other arrangement not being voted on any matter, or the withholding of any proxy relating thereto, where the effect of such agreement, plan or other arrangement would be to enable any person, but for Article V of the Certificate of Incorporation of ICE, either alone or together with its related persons, to vote, possess the right to vote or cause the voting of shares of stock of ICE that would exceed 20% of the then outstanding votes entitled to be cast on such matter neither such person nor any of its related persons is, with respect to NYSE National, an ETP Holder. New Section 12.1.b would provide that, subject to its fiduciary obligations under applicable law, for so long as ICE directly or indirectly controls NYSE National (or its successor), the Board of Directors of ICE shall not adopt any resolution pursuant to clause (b) of Section B(2) of Article V of ICE’s Certificate of Incorporation, unless the Board of Directors shall have determined that neither such person nor any of its related persons is an ETP Holder. New Section 12.2 would provide that, for so long as ICE shall control, directly or indirectly, NYSE National (or its successor), the ICE board of directors shall not adopt any resolution to repeal or amend any provision of the certificate of incorporation of ICE unless such amendment or repeal shall either be (a) filed with or filed with and approved by the SEC under Section 19 of the Exchange Act and the rules promulgated thereunder or (b) submitted to the board of directors of NYSE National (or the board of directors of its successor), and if such board of directors determines that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the Commission, as the case may be. Proposed Eighth Amended and Restated Certificate of Incorporation of Intercontinental Exchange Holdings, Inc. (‘‘ICE Holdings Certificate of Incorporation’’) The ICE Holdings Certificate of Incorporation is being amended as follows: • On the first page, add ‘‘Eighth’’ and delete ‘‘Seventh’’ before ‘‘Amended and Restated Certificate of Incorporation’’ in the heading and update items (2)–(5) accordingly to reflect that this would be the eighth amendment and restatement E:\FR\FM\29DEN1.SGM 29DEN1 asabaliauskas on DSK3SPTVN1PROD with NOTICES 96104 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices including replacing an incorrect reference to ‘‘Sixth’’ before ‘‘Amended’’ in item (3). The date would also be updated in the preamble on the first page. • To distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National, subsection A.3.c.ii of Article V (Limitations on Voting and Ownership) would be amended to define an ETP Holder of NYSE Arca Equities as an ‘‘NYSE Arca Equities ETP Holder.’’ Obsolete references to NYSE Market (DE) and NYSE Regulation, would also be deleted.8 Subsection A.3.c of Article V would be amended to add a new subsection (v), similar to those in place for the other NYSE Exchanges, which would provide that, for so long as the ICE Holdings directly or indirectly controls NYSE National (or its successor), no person nor any of its related persons (as those terms are defined therein) is an ETP Holder (as proposed to be defined in the bylaws of NYSE National, discussed above) of NYSE National. • Subsection A.3.d of Article V would be amended to add ‘‘NYSE Arca’’ before ‘‘ETP Holder’’ in one place to distinguish between the NYSE Arca Equities ETP Holders of and those of NYSE National. Subsection (A)(3)(d) would be further amended to add a new subsection (v) similar to those in place for the other NYSE Exchanges. The new subsection would incorporate NYSE National into the existing restriction, such that the ICE Holdings Board of Directors would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder. • Subsection B.3 of Article V would be amended to add a new subsection (g) similar to those in place for the other NYSE Exchanges, incorporating NYSE National into the restriction on the ICE Holdings board of directors adopting any resolution pursuant to clause (b) of Section B.2 of Article V of the ICE Holdings Certificate of Incorporation (which relates to ICE board of directors approval of ownership of ICE capital stock by a person together with its related persons in excess of 20%) unless the NYSE Holdings board of directors determines that, for so long as ICE Holdings controls NYSE National, neither such person nor any of its 8 See note 7, supra. VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 related persons is an NYSE National ETP Holder. Proposed Fifth Amended and Restated Bylaws of Intercontinental Exchange Holdings, Inc. (‘‘ICE Holdings Bylaws’’) The ICE Holdings Bylaws are being amended as follows: • The cover page and heading on the first page would be amended to add ‘‘Fifth’’ and delete ‘‘Fourth’’ before ‘‘Amended and Restated Bylaws’’ to reflect that this would be the fifth amendment and restatement. The effective date on the cover page would also be updated. • Similar to the ICE Bylaws discussed above, the ICE Holdings Bylaws would be amended to include ‘‘NYSE National, Inc.’’ in: Æ The definition of ‘‘U.S. Regulated Subsidiaries’’ in Article III, Section 3.15, which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, NYSE Arca, NYSE Arca Equities, and the Exchange, and to provide that the term ‘‘U.S. Regulated Subsidiaries’’ includes those entities listed or their successors, but only so long as they continue to be controlled, directly or indirectly, by ICE Holdings. Obsolete references to NYSE Market (DE) and NYSE Regulation in that section would also be deleted; 9 Æ Article VIII (Confidential Information), Section 8.1, which would be amended to extend the same protection to confidential information relating to the self-regulatory function of NYSE National or its successor; 10 and Æ Article XI (Amendment to the Bylaws), Section 11.3, which provides that, for so long as ICE controls any of the U.S. Regulated Subsidiaries, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the U.S. Regulated Subsidiaries or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE Holdings. Obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted from Article VXI, Section 11.3.11 note 7, supra. VIII, Section 8.1 would also be amended to delete obsolete references to NYSE Market (DE) and NYSE Regulation. 11 See note 7, supra. Conforming changes to delete and replace connectors would also be made throughout. Proposed Independence Policy of the Board of Directors of Intercontinental Exchange, Inc. (‘‘ICE Director Independence Policy’’) The ICE Director Independence Policy would be amended to add NYSE National to the section describing ‘‘Independence Qualifications.’’ In particular, NYSE National would be added to categories (1)(b) and (c) that refer to ‘‘members,’’ as defined in section 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act.12 The clause ‘‘and ‘Person Associated with an ETP Holder’ (as defined in Rule 1.5 of NYSE National, Inc.)’’ would also be added to category (1)(b) in reference to ‘‘allied persons.’’ NYSE National would also be added to subsections (4) and (5) of the ‘‘Independence Qualifications’’ section.13 Obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted.14 Proposed Eighth Amended and Restated Limited Liability Company Agreement of NYSE Holdings LLC (‘‘NYSE Holdings LLC Operating Agreement’’) The NYSE Holdings LLC Operating Agreement would be amended as follows: • The heading and preamble would be amended to add ‘‘Eighth’’ and delete ‘‘Seventh’’ before ‘‘Amended and Restated Limited Liability Agreement’’ to reflect that this would be the eighth amendment and restatement. The effective date would also be updated. After ‘‘This Agreement amends and restates in its entirety that’’ in the second full sentence would be added the clause ‘‘certain Seventh Amended and Restated Limited Liability Company Agreement, dated as of May 22, 2015, which amended and restated in its entirety that.’’ • The current penultimate whereas clause would be amended by adding ‘‘in May 2015’’ before ‘‘the Company’’ and ‘‘now desires to amend and restate’’ immediately following would be replaced with ‘‘amended and restated.’’ ‘‘Had’’ and ‘‘are’’ would be changed to the past tense ‘‘had’’ [sic] and ‘‘were’’ in the final sentence. • The following new whereas clause would be added immediately above the current last whereas clause: ‘‘WHEREAS, the Company now desires to amend and restate the Seventh Amended and Restated Agreement to 9 See 10 Article PO 00000 Frm 00149 Fmt 4703 Sfmt 4703 12 See 15 U.S.C. 78c(a)(3)(a). changes would also be made to delete and replace connectors. The link in footnote 2 to the NYSE Listed Company Manual and commentary would also be updated. 14 See note 7, supra. 13 Conforming E:\FR\FM\29DEN1.SGM 29DEN1 asabaliauskas on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices reflect the acquisition of NYSE National, Inc. by the Company’s wholly-owned subsidiary NYSE Group, Inc.;’’. • The definition of ETP Holder in Article I (Interpretation), Section 1.1 would be deleted and new definitions of an NYSE Arca ETP Holder and NYSE National ETP Holder would be added. The obsolete definition of NYSE Market (DE) would be deleted.15 • Article IX (Voting and Ownership Limitations), Section 9.1(a)(3)(C) would be amended to add ‘‘NYSE Arca’’ before ‘‘ETP Holder’’ and the defined term ‘‘NYSE Arca ETP Holder’’ to distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National. An obsolete reference to NYSE Market (DE) would also be deleted from Section 9.1(a)(3)(C).16 Section 9.1(a)(3)(C) would be amended to add a new subsection (v) similar to those in place for the other NYSE Exchanges. The new subsection (v) would incorporate NYSE National into the existing restriction, such that the ICE Holdings board of directors would be restricted from adopting a resolution pursuant to clause (b) of Section 9.1(a)(2) unless the NYSE Holdings board of directors determines that, for so long as NYSE Holdings directly or indirectly controls NYSE National, Inc. (or its successor), neither such person nor any of its related persons is an ETP Holder (as defined in the bylaws of NYSE National, as such bylaws may be in effect from time to time) of NYSE National (‘‘NYSE National ETP Holder’’). The clause would also provide that any such person that is a related person of an ETP Holder shall hereinafter also be deemed to be an ‘‘NYSE National ETP Holder’’ for purposes of the agreement, as the context may require. • Article IX, Section 9.1(a)(3)(D) would be amended to add ‘‘NYSE Arca’’ before ‘‘ETP Holder.’’ An outdated reference to NYSE Market (DE) would also be deleted. Further, a new clause (v) would be added to Section 9.1(a)(3)(D) to incorporate NYSE National into the existing restriction on the NYSE Holdings Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter for so long as NYSE Holdings controls NYSE National. The clause would provide that ‘‘for so long as the Corporation directly or indirectly 15 See note 7, supra. note 7, supra. Conforming changes to delete and replace connectors would also be made throughout. 16 See VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 controls NYSE National, neither such person nor any of its Related Persons is an NYSE National ETP Holder.’’ • Article IX, Section 9.1(b)(3) of Article IX [sic] would be amended to add a new subpart (G) to incorporate NYSE National into the existing restriction on the NYSE Holdings Board of Directors, so that it would provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Holdings directly or indirectly controls NYSE National (or its successor), the board of directors of NYSE Holdings shall not adopt any resolution pursuant to (b) of Section 9.1(b)(2) of the NYSE Holdings LLC Operating Agreement, unless the board of directors of NYSE Holdings shall have determined that neither such person nor any of its related persons is an NYSE National ETP Holder. Proposed Fifth Amended and Restated Certificate of Incorporation of NYSE Group, Inc. (‘‘NYSE Group Certificate of Incorporation’’) The NYSE Group Certificate of Incorporation is being amended as follows: • On the first page, add ‘‘Fifth’’ and delete ‘‘Fourth’’ before ‘‘Amended and Restated Certificate of Incorporation’’ in the heading. The Recitations would be amended to reflect that this would be the fifth amendment and restatement. First, the Fifth Recitation would be updated to reflect that a Fourth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 29, 2014. A new Sixth Recitation would be updated to reflect that the Fifth Amended and Restated Certificate of Incorporation has been duly adopted. The current Sixth Recitation would become the Seventh and would reflect that the Fourth Amended and Restated Certificate of Incorporation is amended and restated in its entirety. • NYSE National would be added to the list of ‘‘Regulated Subsidiaries’’ in Article 4 (Stock), Section 4(b)(1), which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, NYSE Arca Equities, and NYSE MKT, and the obsolete references to NYSE Market (DE) and NYSE Regulation would be deleted. • To distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National, Section 4(b)(1)(y) of Article IV would be amended to define an ETP Holder of NYSE Arca Equities as an ‘‘NYSE Arca Equities ETP Holder.’’ An outdated reference to NYSE Market (DE) would also be deleted. PO 00000 Frm 00150 Fmt 4703 Sfmt 4703 96105 Section 4(b)(1)(y) would also be amended to add a provision to [sic] similar to those in place for the other NYSE Exchanges providing that, for so long as NYSE Group directly or indirectly controls NYSE National (or its successor), neither such person nor any of its related persons is an ETP Holder (as defined in the rules of NYSE National, as such rules may be in effect from time to time) of NYSE National (defined as an ‘‘NYSE National ETP Holder’’) and that any such person that is a related person of an NYSE National ETP Holder shall hereinafter also be deemed to be an ‘‘NYSE National ETP Holder’’ for purposes of the certificate of incorporation, as the context may require. • Further, subsection 4(b)(1)(z) of Article IV would be amended to define an ETP Holder of NYSE Arca Equities as an ‘‘NYSE Arca Equities ETP Holder’’ and delete an outdated reference to NYSE Market (DE). Subsection 4(b)(1)(z) would also be amended to incorporate NYSE National into the existing restriction on the ICE Holdings Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder. • A new subpart (vii) would be added to subsection 4(b)(2)(C) of Article IV to incorporate NYSE National into the existing restriction on the NYSE Group Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder.17 • Article X (Confidential Information) would be amended to extend the same protection to confidential information relating to the self-regulatory function of NYSE National or its successor and delete obsolete references to NYSE Market (DE) and NYSE Regulation. • Article XII (Amendments to Certificate of Incorporation) provides that, for so long as NYSE Group controls the Regulated Subsidiaries, before any amendment or repeal of any provision of the Certificate of Incorporation shall be effective, such amendment or repeal shall either (a) be filed with or filed with and approved by the SEC under 17 An obsolete reference to NYSE Market (DE) would also be deleted from Article IV, 4(b)(2)(C)(v). E:\FR\FM\29DEN1.SGM 29DEN1 96106 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices Section 19 of the Exchange Act and the rules promulgated thereunder or (b) be submitted to the boards of directors of NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE MKT or the boards of directors of their successors. Article XII would be amended to add NYSE National to subsection (b) and delete references to NYSE Market (DE) and NYSE Regulation. asabaliauskas on DSK3SPTVN1PROD with NOTICES Proposed Third Amended and Restated Bylaws of NYSE Group, Inc. (‘‘NYSE Group Bylaws’’) The NYSE Group Bylaws are being amended as follows: • Add ‘‘Third’’ and delete ‘‘Second’’ before ‘‘Amended and Restated Bylaws’’ in the heading to reflect that this would be the third amendment and restatement. • Article VII (Miscellaneous), Section 7.9(A)(b) currently provides that, for so long as NYSE Group controls any of the NYSE Exchanges, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE Alternext US LLC or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE. Section 7.9(A)(b) would be amended to delete obsolete references to NYSE Market (DE) and NYSE Regulation, replace the outdated reference to ‘‘NYSE Alternext US LLC’’ with ‘‘NYSE MKT LLC,’’ and add NYSE National. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act 18 in general, and with Section 6(b)(1) 19 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. The Exchange believes that the proposed changes to the corporate documents of the NYSE Group and its intermediary and ultimate parent entities, including the ICE bylaws and director 18 15 19 15 U.S.C. 78f(b). U.S.C. 78f(b)(1). VerDate Sep<11>2014 18:41 Dec 28, 2016 independence policy, ICE Holdings bylaws and certificate of incorporation, NYSE Holdings operating agreement, and the NYSE Group bylaws and certificate of incorporation, to reflect the Acquisition, including updating corporate names, would contribute to the orderly operation of the Exchange by adding clarity and transparency to the Exchange’s rules and would enable the Exchange to continue 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 amendment to the Bylaws is consistent with Section 6(b)(1). For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act 20 because the proposed rule change would be consistent with and facilitate would create [sic] 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 proposed updates to the corporate documents and replacement of outdated or obsolete references removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having these references in the governing documents following the Acquisition. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open market by ensuring that persons subject to the Exchange’s jurisdiction, regulators, and the investing public can more easily navigate and understand the governing documents. The Exchange further believes that eliminating an obsolete reference would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete references will 20 15 Jkt 241001 PO 00000 U.S.C. 78f(b)(5). Frm 00151 Fmt 4703 Sfmt 4703 also further the goal of transparency and add clarity to the Exchange’s rules. 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 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 updating the Exchange’s rules to reflect the Acquisition and to remove obsolete references. 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 within such longer period 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 such 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 (http://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSEArca–2016–167 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–NYSEArca–2016–167. This file number should be included on the E:\FR\FM\29DEN1.SGM 29DEN1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 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; 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– NYSEArca–2016–167 and should be submitted on or before January 19, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.21 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2016–31490 Filed 12–28–16; 8:45 am] SECURITIES AND EXCHANGE COMMISSION [Release No. 34–79673; File No. SR– NYSEArca–2016–89] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment Nos. 2 and 3 to Proposed Rule Change Amending the CoLocation Services Offered by the Exchange To Add Certain Access and Connectivity Fees asabaliauskas on DSK3SPTVN1PROD with NOTICES December 22, 2016. On August 16, 2016, NYSE Arca, Inc. (‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 1 15 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 2 17 CFR 240.19b–4. Securities Exchange Act Release No. 34– 78628 (August 22, 2016), 81 FR 59004 (‘‘Notice’’). 4 The Commission notes that it did receive one comment letter on a related filing, NYSE–2016–45 (the ‘‘NYSE Companion Filing’’), which is equally relevant to this filing. See letter to Brent J. Fields, Secretary, Commission, from John Ramsay, Chief Market Policy Officer, Investors Exchange LLC (IEX), dated September 9, 2016. On September 23, 2016, the NYSE submitted a response to the IEX letter. 5 See Securities Exchange Act Release No. 34– 78967 (September 28, 2016), 81 FR 68480. 6 Amendment No. 1 is available on the Commission’s Web site at https://www.sec.gov/ comments/sr-nysearca-2016-89/nysearca2016891.pdf. 7 See Securities Exchange Act Release 34–79379 (November 22, 2016), 81 FR 86036. 8 See letter to Brent J. Fields, Commission, from Melissa MacGregor, Managing Director and Associate General Counsel, SIFMA, dated December 12, 2016; letter to Brent J. Fields, Commission, from Joe Wald, Chief Executive Officer, Clearpool Group, dated December 16, 2016; letter to Brent J. Fields, Secretary, Commission, from John Ramsay, Chief Market Policy Officer, Investors Exchange LLC (IEX), dated December 21, 2016. All comments received by the Commission on the proposed rule change are available on the Commission’s Web site at: https://www.sec.gov/comments/sr-nysearca2016-89/nysearca201689.shtml. 3 See BILLING CODE 8011–01–P 21 17 19b–4 thereunder,2 a proposed rule change to amend the co-location services offered by the Exchange to: (1) Provide additional information regarding the access to various trading and execution services; connectivity to market data feeds and testing and certification feeds; connectivity to Third Party Systems; and connectivity to DTCC provided to Users using data center local area networks; and (2) establish fees relating to a User’s access to various trading and execution services; connectivity to market data feeds and testing and certification feeds; connectivity to DTCC; and other services. The proposed rule change was published for comment in the Federal Register on August 26, 2016.3 The Commission received no comments in response to the proposed rule change.4 On October 4, 2016, the Commission extended the time period within which to 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 November 24, 2016.5 On November 2, 2016, the Exchange filed Amendment No. 1 to the proposed rule change.6 On November 29, 2016, the Commission instituted proceedings to determine whether to approve or disapprove the proposed rule change, as modified by Amendment No. 1.7 In response to the Order Instituting Proceedings, the Commission received additional comment letters regarding the proposed rule change.8 PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 96107 On December 9, 2016, the Exchange filed Amendment No. 2 to the proposed rule change as described in Items I and II below, which Items have been prepared by Exchange. On December 13, 2016 the Exchange filed Amendment No. 3 to the proposed rule change.9 The Commission is publishing this notice to solicit comments on Amendment Nos. 2 and 3 to the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Amendments The Exchange proposes to amend the co-location services offered by the Exchange to establish fees relating to Users’ access to third party trading and execution services; connectivity to third party data feeds and testing and certification feeds; access to clearing; and other services. In addition, this proposed rule change reflects changes to the NYSE Arca Options Fee Schedule (the ‘‘Options Fee Schedule’’) and, through its wholly owned subsidiary NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’), the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the ‘‘Equities Fee Schedule’’ and, together with the Options Fee Schedule, the ‘‘Fee Schedules’’) related to these co-location services. This Amendment No. 2 10 supersedes the original filing and Amendment 1 in their entirety.11 The The Commission notes that it received an additional letter on the NYSE Companion Filing. See letter to Brent J. Fields, Commission, from Adam C. Cooper, Senior Managing Director and Chief Legal Officer, Citadel Securities, dated December 12, 2016. All comments received by the Commission on the NYSE Companion Filing are available on the Commission’s Web site at: https:// www.sec.gov/comments/sr-nyse-2016-45/ nyse201645.shtml. 9 The Commission notes that the Exhibit 5 filed with Amendment No. 2 contained erroneous rule text and therefore was corrected in Amendment No. 3. Amendment Nos. 2 and 3 are available at https:// www.sec.gov/comments/sr-nysearca-2016-89/ nysearca201689-3.pdf. 10 See supra note 9, noting that Amendment No. 2 was modified in part by Amendment No. 3. Accordingly, the Commission notes that Amendment Nos. 2 and 3 together supersede the original filing, as modified by Amendment No. 1, in its entirety. 11 The Securities and Exchange Commission (‘‘Commission’’) has issued an order instituting proceedings to determine whether to approve or disapprove the proposed rule change, as modified by amendments 1 and 2. See Securities Exchange Act Release No. 79379 (November 22, 2016), 81 FR 86036 (November 29, 2016) (SR–NYSEArca–2016– 89) (the ‘‘November 22 Order’’). In its filing, as amended by amendment 1, the Exchange proposed adding to the Fee Schedules (a) a more detailed description of the connectivity to certain market data products (the ‘‘Included Data Products’’) that Users receive with connections to the local area networks available in the data center; and (b) connectivity fees for connecting to other market E:\FR\FM\29DEN1.SGM Continued 29DEN1

Agencies

[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Notices]
[Pages 96102-96107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31490]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79678; File No. SR-NYSEArca-2016-167]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change in Connection With the Proposed Acquisition of 
National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, 
Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE 
Holdings LLC, Intercontinental Exchange Holdings, Inc., and 
Intercontinental Exchange, Inc.

December 22, 2016.
    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 December 16, 2016, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
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 in connection with the proposed acquisition 
of National Stock Exchange, Inc. (``NSX'') by the Exchange's parent the 
NYSE Group, Inc. (``NYSE Group''), to amend certain organizational 
documents of NYSE Group, NYSE Holdings LLC (``NYSE Holdings''), 
Intercontinental Exchange Holdings, Inc. (``ICE Holdings''), and 
Intercontinental Exchange, Inc. (``ICE''). 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.

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

1. Purpose
Background
    On December 14, 2016, ICE entered into an agreement with the NSX 
pursuant to which its wholly-owned subsidiary NYSE Group would acquire 
all of the outstanding capital stock of the NSX (the ``Acquisition''). 
As a result of the Acquisition, the NSX would be renamed NYSE National, 
Inc. (``NYSE National'') and would be operated as a wholly-owned 
subsidiary of NYSE Group. NYSE Group is a wholly-owned subsidiary of 
NYSE Holdings, which is in turn 100% owned by ICE Holdings. ICE, a 
public company listed on the New York Stock Exchange LLC (the 
``NYSE''), owns 100% of ICE Holdings.
    Following the Acquisition, NYSE National would continue to be 
registered as a national securities exchange and as a separate self-
regulatory organization (``SRO''). As such, NYSE National would 
continue to have separate rules, membership rosters, and listings that 
would be distinct from the rules, membership rosters, and listings of 
the three other registered national securities exchanges and SROs owned 
by NYSE Group, namely, the NYSE, NYSE MKT and the Exchange (together, 
the ``NYSE Exchanges'').\4\
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    \4\ The NYSE Exchanges are referred to as the U.S. Regulated 
Subsidiaries in the corporate documents proposed to be amended in 
this rule filing.
---------------------------------------------------------------------------

    In connection with the Acquisition and as discussed more fully 
below, the following organizational documents of NYSE Group and its 
intermediary and ultimate parent entities would be amended:
     ICE bylaws and director independence policy,
     ICE Holdings bylaws and certificate of incorporation,
     NYSE Holdings operating agreement, and
     NYSE Group bylaws and certificate of incorporation.
    These proposed changes would consist of technical and conforming 
amendments to reflect the proposed new ownership of NYSE National by 
the NYSE Group, and, indirectly, ICE.\5\
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    \5\ The proposed revisions are also discussed in the NYSE and 
NYSE MKT companion rule filings related to the Acquisition. See SR-
NYSE-2016-90 & SR-NYSEMKT-2016-122.

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[[Page 96103]]

    The proposed rule changes would be effected following approval of 
this rule filing no later than February 28, 2017, on a date determined 
by its Board.
Proposed Rule Change
    The Exchange proposes that, in connection with the Acquisition, the 
Commission approve the organizational documents of ICE and its wholly-
owned subsidiaries ICE Holdings and NYSE Group and the Independence 
Policy of the Board of Directors of Intercontinental Exchange, Inc. 
(``ICE Independence Policy''), all of which are to be amended 
concurrently with the Acquisition to reflect ownership of NYSE 
National.
    The current organizational documents of ICE and its wholly-owned 
subsidiaries provide certain protections to the NYSE Exchanges that are 
designed to protect and facilitate their self-regulatory functions, 
including certain restrictions on the ability to vote and own shares of 
ICE.\6\ In general, the organizational documents of ICE and its wholly-
owned subsidiaries are being amended to provide similar protections to 
the NYSE National as are currently provided to the NYSE Exchanges under 
those documents.
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    \6\ See Securities Exchange Release No. 70210 (August 15, 2013), 
78 FR 51758 (August 21, 2013) (approving rule changes related to 
NYSE Euronext becoming a wholly owned subsidiary of ICE (then called 
IntercontinentalExchange Group, Inc.)).
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    In addition, obsolete references to NYSE Market (DE), Inc. 
(formerly NYSE Market, Inc.) (``NYSE Market (DE)''), and NYSE 
Regulation, Inc. (``NYSE Regulation'') found in various documents are 
proposed to be deleted.\7\
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    \7\ NYSE Market (DE) and NYSE Regulation were previously parties 
to a Delegation Agreement whereby the NYSE delegated certain 
regulatory functions to NYSE Regulation and certain market functions 
to NYSE Market (DE). The Delegation Agreement was terminated when 
the NYSE re-integrated its regulatory and market functions. As a 
result, the two entities ceased being regulated subsidiaries. See 
Securities Exchange Act Release No. 75991 (September 28, 2015), 80 
FR 59837 (October 2, 2015). NYSE Regulation has since been merged 
out of existence.
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Proposed Seventh Amended and Restated Bylaws of Intercontinental 
Exchange, Inc. (``ICE Bylaws'')
    The ICE Bylaws would be amended to reflect the Acquisition and 
incorporate NYSE National in the ICE Bylaws' existing voting and 
ownership restrictions, provisions relating to the qualifications of 
directors and officers and their submission to jurisdiction, compliance 
with the federal securities laws, access to books and records, and 
other matters related to its control of the U.S. Regulated 
Subsidiaries.
    Specifically, the ICE Bylaws would be amended as follows:
     The definition of ``U.S. Regulated Subsidiaries'' in 
Article III, Section 3.15, which currently includes the NYSE, NYSE 
Market (DE), NYSE Regulation, NYSE Arca, LLC, the Exchange, NYSE Arca 
Equities, and NYSE MKT, would be amended to include NYSE National. The 
obsolete references to NYSE Market (DE) and NYSE Regulation would also 
be deleted.
     Article VIII (Confidential Information), Section 8.1, 
would be amended to extend to NYSE National the same protection 
regarding confidential information provided to the NYSE Exchanges and 
NYSE Arca Equities, and to remove the obsolete references to NYSE 
Market (DE) and NYSE Regulation.
     Article XI, Section 11.3, provides that, for so long as 
ICE controls any of the U.S. Regulated Subsidiaries, any amendment to 
or repeal of the ICE Bylaws must either be (i) filed with or filed with 
and approved by the Commission under Section 19 of the Exchange Act and 
the rules promulgated thereunder, or (ii) submitted to the boards of 
directors of the U.S. Regulated Subsidiaries or the boards of directors 
of their successors, in each case only to the extent that such entity 
continues to be controlled directly or indirectly by ICE. Section 11.3 
would be amended to include the NYSE National, and to delete the 
obsolete references to NYSE Market (DE) and NYSE Regulation.
    The ICE Bylaws would be further amended to add a new Article XII 
(Voting and Ownership Limitations). New Section 12.1.a of Article XII 
would provide that, subject to its fiduciary obligations under 
applicable law, for so long as ICE directly or indirectly controls NYSE 
National (or its successor), the board of directors of ICE shall not 
adopt any resolution pursuant to clause (b) of Section A.2 of Article V 
of the certificate of incorporation of ICE (which relates to ICE board 
of directors approval of ownership of ICE capital stock by a person 
together with its related persons in excess of 20%), unless the board 
of directors of ICE shall have determined that:
     In the case of a resolution to approve the exercise of 
voting rights in excess of 20% of the then outstanding votes entitled 
to be cast on such matter, neither such person nor any of its related 
persons is an ETP Holder of NYSE National;
     in the case of a resolution to approve the entering into 
of an agreement, plan or other arrangement under circumstances that 
would result in shares of stock of ICE that would be subject to such 
agreement, plan or other arrangement not being voted on any matter, or 
the withholding of any proxy relating thereto, where the effect of such 
agreement, plan or other arrangement would be to enable any person, but 
for Article V of the Certificate of Incorporation of ICE, either alone 
or together with its related persons, to vote, possess the right to 
vote or cause the voting of shares of stock of ICE that would exceed 
20% of the then outstanding votes entitled to be cast on such matter 
neither such person nor any of its related persons is, with respect to 
NYSE National, an ETP Holder.
    New Section 12.1.b would provide that, subject to its fiduciary 
obligations under applicable law, for so long as ICE directly or 
indirectly controls NYSE National (or its successor), the Board of 
Directors of ICE shall not adopt any resolution pursuant to clause (b) 
of Section B(2) of Article V of ICE's Certificate of Incorporation, 
unless the Board of Directors shall have determined that neither such 
person nor any of its related persons is an ETP Holder.
    New Section 12.2 would provide that, for so long as ICE shall 
control, directly or indirectly, NYSE National (or its successor), the 
ICE board of directors shall not adopt any resolution to repeal or 
amend any provision of the certificate of incorporation of ICE unless 
such amendment or repeal shall either be (a) filed with or filed with 
and approved by the SEC under Section 19 of the Exchange Act and the 
rules promulgated thereunder or (b) submitted to the board of directors 
of NYSE National (or the board of directors of its successor), and if 
such board of directors determines that such amendment or repeal must 
be filed with or filed with and approved by the Commission under 
Section 19 of the Exchange Act and the rules promulgated thereunder 
before such amendment or repeal may be effectuated, then such amendment 
or repeal shall not be effectuated until filed with or filed with and 
approved by the Commission, as the case may be.
Proposed Eighth Amended and Restated Certificate of Incorporation of 
Intercontinental Exchange Holdings, Inc. (``ICE Holdings Certificate of 
Incorporation'')
    The ICE Holdings Certificate of Incorporation is being amended as 
follows:
     On the first page, add ``Eighth'' and delete ``Seventh'' 
before ``Amended and Restated Certificate of Incorporation'' in the 
heading and update items (2)-(5) accordingly to reflect that this would 
be the eighth amendment and restatement

[[Page 96104]]

including replacing an incorrect reference to ``Sixth'' before 
``Amended'' in item (3). The date would also be updated in the preamble 
on the first page.
     To distinguish between the ETP Holders of NYSE Arca 
Equities and those of NYSE National, subsection A.3.c.ii of Article V 
(Limitations on Voting and Ownership) would be amended to define an ETP 
Holder of NYSE Arca Equities as an ``NYSE Arca Equities ETP Holder.'' 
Obsolete references to NYSE Market (DE) and NYSE Regulation, would also 
be deleted.\8\
---------------------------------------------------------------------------

    \8\ See note 7, supra.
---------------------------------------------------------------------------

    Subsection A.3.c of Article V would be amended to add a new 
subsection (v), similar to those in place for the other NYSE Exchanges, 
which would provide that, for so long as the ICE Holdings directly or 
indirectly controls NYSE National (or its successor), no person nor any 
of its related persons (as those terms are defined therein) is an ETP 
Holder (as proposed to be defined in the bylaws of NYSE National, 
discussed above) of NYSE National.
     Subsection A.3.d of Article V would be amended to add 
``NYSE Arca'' before ``ETP Holder'' in one place to distinguish between 
the NYSE Arca Equities ETP Holders of and those of NYSE National.
    Subsection (A)(3)(d) would be further amended to add a new 
subsection (v) similar to those in place for the other NYSE Exchanges. 
The new subsection would incorporate NYSE National into the existing 
restriction, such that the ICE Holdings Board of Directors would be 
restricted from adopting a resolution to approve the exercise of voting 
rights that would exceed 20% of the then outstanding votes entitled to 
be cast on such matter, where neither such person nor any of its 
related persons is, with respect to NYSE National, an NYSE National ETP 
Holder.
     Subsection B.3 of Article V would be amended to add a new 
subsection (g) similar to those in place for the other NYSE Exchanges, 
incorporating NYSE National into the restriction on the ICE Holdings 
board of directors adopting any resolution pursuant to clause (b) of 
Section B.2 of Article V of the ICE Holdings Certificate of 
Incorporation (which relates to ICE board of directors approval of 
ownership of ICE capital stock by a person together with its related 
persons in excess of 20%) unless the NYSE Holdings board of directors 
determines that, for so long as ICE Holdings controls NYSE National, 
neither such person nor any of its related persons is an NYSE National 
ETP Holder.
Proposed Fifth Amended and Restated Bylaws of Intercontinental Exchange 
Holdings, Inc. (``ICE Holdings Bylaws'')
    The ICE Holdings Bylaws are being amended as follows:
     The cover page and heading on the first page would be 
amended to add ``Fifth'' and delete ``Fourth'' before ``Amended and 
Restated Bylaws'' to reflect that this would be the fifth amendment and 
restatement. The effective date on the cover page would also be 
updated.
     Similar to the ICE Bylaws discussed above, the ICE 
Holdings Bylaws would be amended to include ``NYSE National, Inc.'' in:
    [cir] The definition of ``U.S. Regulated Subsidiaries'' in Article 
III, Section 3.15, which currently includes the NYSE, NYSE Market (DE), 
NYSE Regulation, NYSE Arca, LLC, NYSE Arca, NYSE Arca Equities, and the 
Exchange, and to provide that the term ``U.S. Regulated Subsidiaries'' 
includes those entities listed or their successors, but only so long as 
they continue to be controlled, directly or indirectly, by ICE 
Holdings. Obsolete references to NYSE Market (DE) and NYSE Regulation 
in that section would also be deleted; \9\
---------------------------------------------------------------------------

    \9\ See note 7, supra.
---------------------------------------------------------------------------

    [cir] Article VIII (Confidential Information), Section 8.1, which 
would be amended to extend the same protection to confidential 
information relating to the self-regulatory function of NYSE National 
or its successor; \10\ and
---------------------------------------------------------------------------

    \10\ Article VIII, Section 8.1 would also be amended to delete 
obsolete references to NYSE Market (DE) and NYSE Regulation.
---------------------------------------------------------------------------

    [cir] Article XI (Amendment to the Bylaws), Section 11.3, which 
provides that, for so long as ICE controls any of the U.S. Regulated 
Subsidiaries, any amendment to or repeal of the ICE Bylaws must either 
be (i) filed with or filed with and approved by the Commission under 
section 19 of the Exchange Act and the rules promulgated thereunder, or 
(ii) submitted to the boards of directors of the U.S. Regulated 
Subsidiaries or the boards of directors of their successors, in each 
case only to the extent that such entity continues to be controlled 
directly or indirectly by ICE Holdings. Obsolete references to NYSE 
Market (DE) and NYSE Regulation would also be deleted from Article VXI, 
Section 11.3.\11\
---------------------------------------------------------------------------

    \11\ See note 7, supra. Conforming changes to delete and replace 
connectors would also be made throughout.
---------------------------------------------------------------------------

Proposed Independence Policy of the Board of Directors of 
Intercontinental Exchange, Inc. (``ICE Director Independence Policy'')
    The ICE Director Independence Policy would be amended to add NYSE 
National to the section describing ``Independence Qualifications.'' In 
particular, NYSE National would be added to categories (1)(b) and (c) 
that refer to ``members,'' as defined in section 3(a)(3)(A)(i), 
3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange 
Act.\12\ The clause ``and `Person Associated with an ETP Holder' (as 
defined in Rule 1.5 of NYSE National, Inc.)'' would also be added to 
category (1)(b) in reference to ``allied persons.'' NYSE National would 
also be added to subsections (4) and (5) of the ``Independence 
Qualifications'' section.\13\ Obsolete references to NYSE Market (DE) 
and NYSE Regulation would also be deleted.\14\
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    \12\ See 15 U.S.C. 78c(a)(3)(a).
    \13\ Conforming changes would also be made to delete and replace 
connectors. The link in footnote 2 to the NYSE Listed Company Manual 
and commentary would also be updated.
    \14\ See note 7, supra.
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Proposed Eighth Amended and Restated Limited Liability Company 
Agreement of NYSE Holdings LLC (``NYSE Holdings LLC Operating 
Agreement'')
    The NYSE Holdings LLC Operating Agreement would be amended as 
follows:
     The heading and preamble would be amended to add 
``Eighth'' and delete ``Seventh'' before ``Amended and Restated Limited 
Liability Agreement'' to reflect that this would be the eighth 
amendment and restatement. The effective date would also be updated. 
After ``This Agreement amends and restates in its entirety that'' in 
the second full sentence would be added the clause ``certain Seventh 
Amended and Restated Limited Liability Company Agreement, dated as of 
May 22, 2015, which amended and restated in its entirety that.''
     The current penultimate whereas clause would be amended by 
adding ``in May 2015'' before ``the Company'' and ``now desires to 
amend and restate'' immediately following would be replaced with 
``amended and restated.'' ``Had'' and ``are'' would be changed to the 
past tense ``had'' [sic] and ``were'' in the final sentence.
     The following new whereas clause would be added 
immediately above the current last whereas clause: ``WHEREAS, the 
Company now desires to amend and restate the Seventh Amended and 
Restated Agreement to

[[Page 96105]]

reflect the acquisition of NYSE National, Inc. by the Company's wholly-
owned subsidiary NYSE Group, Inc.;''.
     The definition of ETP Holder in Article I 
(Interpretation), Section 1.1 would be deleted and new definitions of 
an NYSE Arca ETP Holder and NYSE National ETP Holder would be added. 
The obsolete definition of NYSE Market (DE) would be deleted.\15\
---------------------------------------------------------------------------

    \15\ See note 7, supra.
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     Article IX (Voting and Ownership Limitations), Section 
9.1(a)(3)(C) would be amended to add ``NYSE Arca'' before ``ETP 
Holder'' and the defined term ``NYSE Arca ETP Holder'' to distinguish 
between the ETP Holders of NYSE Arca Equities and those of NYSE 
National. An obsolete reference to NYSE Market (DE) would also be 
deleted from Section 9.1(a)(3)(C).\16\
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    \16\ See note 7, supra. Conforming changes to delete and replace 
connectors would also be made throughout.
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    Section 9.1(a)(3)(C) would be amended to add a new subsection (v) 
similar to those in place for the other NYSE Exchanges. The new 
subsection (v) would incorporate NYSE National into the existing 
restriction, such that the ICE Holdings board of directors would be 
restricted from adopting a resolution pursuant to clause (b) of Section 
9.1(a)(2) unless the NYSE Holdings board of directors determines that, 
for so long as NYSE Holdings directly or indirectly controls NYSE 
National, Inc. (or its successor), neither such person nor any of its 
related persons is an ETP Holder (as defined in the bylaws of NYSE 
National, as such bylaws may be in effect from time to time) of NYSE 
National (``NYSE National ETP Holder''). The clause would also provide 
that any such person that is a related person of an ETP Holder shall 
hereinafter also be deemed to be an ``NYSE National ETP Holder'' for 
purposes of the agreement, as the context may require.
     Article IX, Section 9.1(a)(3)(D) would be amended to add 
``NYSE Arca'' before ``ETP Holder.'' An outdated reference to NYSE 
Market (DE) would also be deleted.
    Further, a new clause (v) would be added to Section 9.1(a)(3)(D) to 
incorporate NYSE National into the existing restriction on the NYSE 
Holdings Board of Directors, such that it would be restricted from 
adopting a resolution to approve the exercise of voting rights that 
would exceed 20% of the then outstanding votes entitled to be cast on 
such matter for so long as NYSE Holdings controls NYSE National. The 
clause would provide that ``for so long as the Corporation directly or 
indirectly controls NYSE National, neither such person nor any of its 
Related Persons is an NYSE National ETP Holder.''
     Article IX, Section 9.1(b)(3) of Article IX [sic] would be 
amended to add a new subpart (G) to incorporate NYSE National into the 
existing restriction on the NYSE Holdings Board of Directors, so that 
it would provide that, subject to its fiduciary obligations under 
applicable law, for so long as NYSE Holdings directly or indirectly 
controls NYSE National (or its successor), the board of directors of 
NYSE Holdings shall not adopt any resolution pursuant to (b) of Section 
9.1(b)(2) of the NYSE Holdings LLC Operating Agreement, unless the 
board of directors of NYSE Holdings shall have determined that neither 
such person nor any of its related persons is an NYSE National ETP 
Holder.
Proposed Fifth Amended and Restated Certificate of Incorporation of 
NYSE Group, Inc. (``NYSE Group Certificate of Incorporation'')
    The NYSE Group Certificate of Incorporation is being amended as 
follows:
     On the first page, add ``Fifth'' and delete ``Fourth'' 
before ``Amended and Restated Certificate of Incorporation'' in the 
heading. The Recitations would be amended to reflect that this would be 
the fifth amendment and restatement. First, the Fifth Recitation would 
be updated to reflect that a Fourth Amended and Restated Certificate of 
Incorporation was filed with the Secretary of State of the State of 
Delaware on December 29, 2014. A new Sixth Recitation would be updated 
to reflect that the Fifth Amended and Restated Certificate of 
Incorporation has been duly adopted. The current Sixth Recitation would 
become the Seventh and would reflect that the Fourth Amended and 
Restated Certificate of Incorporation is amended and restated in its 
entirety.
     NYSE National would be added to the list of ``Regulated 
Subsidiaries'' in Article 4 (Stock), Section 4(b)(1), which currently 
includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, 
NYSE Arca Equities, and NYSE MKT, and the obsolete references to NYSE 
Market (DE) and NYSE Regulation would be deleted.
     To distinguish between the ETP Holders of NYSE Arca 
Equities and those of NYSE National, Section 4(b)(1)(y) of Article IV 
would be amended to define an ETP Holder of NYSE Arca Equities as an 
``NYSE Arca Equities ETP Holder.'' An outdated reference to NYSE Market 
(DE) would also be deleted.
    Section 4(b)(1)(y) would also be amended to add a provision to 
[sic] similar to those in place for the other NYSE Exchanges providing 
that, for so long as NYSE Group directly or indirectly controls NYSE 
National (or its successor), neither such person nor any of its related 
persons is an ETP Holder (as defined in the rules of NYSE National, as 
such rules may be in effect from time to time) of NYSE National 
(defined as an ``NYSE National ETP Holder'') and that any such person 
that is a related person of an NYSE National ETP Holder shall 
hereinafter also be deemed to be an ``NYSE National ETP Holder'' for 
purposes of the certificate of incorporation, as the context may 
require.
     Further, subsection 4(b)(1)(z) of Article IV would be 
amended to define an ETP Holder of NYSE Arca Equities as an ``NYSE Arca 
Equities ETP Holder'' and delete an outdated reference to NYSE Market 
(DE). Subsection 4(b)(1)(z) would also be amended to incorporate NYSE 
National into the existing restriction on the ICE Holdings Board of 
Directors, such that it would be restricted from adopting a resolution 
to approve the exercise of voting rights that would exceed 20% of the 
then outstanding votes entitled to be cast on such matter, where 
neither such person nor any of its related persons is, with respect to 
NYSE National, an NYSE National ETP Holder.
     A new subpart (vii) would be added to subsection 
4(b)(2)(C) of Article IV to incorporate NYSE National into the existing 
restriction on the NYSE Group Board of Directors, such that it would be 
restricted from adopting a resolution to approve the exercise of voting 
rights that would exceed 20% of the then outstanding votes entitled to 
be cast on such matter, where neither such person nor any of its 
related persons is, with respect to NYSE National, an NYSE National ETP 
Holder.\17\
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    \17\ An obsolete reference to NYSE Market (DE) would also be 
deleted from Article IV, 4(b)(2)(C)(v).
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     Article X (Confidential Information) would be amended to 
extend the same protection to confidential information relating to the 
self-regulatory function of NYSE National or its successor and delete 
obsolete references to NYSE Market (DE) and NYSE Regulation.
     Article XII (Amendments to Certificate of Incorporation) 
provides that, for so long as NYSE Group controls the Regulated 
Subsidiaries, before any amendment or repeal of any provision of the 
Certificate of Incorporation shall be effective, such amendment or 
repeal shall either (a) be filed with or filed with and approved by the 
SEC under

[[Page 96106]]

Section 19 of the Exchange Act and the rules promulgated thereunder or 
(b) be submitted to the boards of directors of NYSE, NYSE Market (DE), 
NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE MKT or the 
boards of directors of their successors. Article XII would be amended 
to add NYSE National to subsection (b) and delete references to NYSE 
Market (DE) and NYSE Regulation.
Proposed Third Amended and Restated Bylaws of NYSE Group, Inc. (``NYSE 
Group Bylaws'')
    The NYSE Group Bylaws are being amended as follows:
     Add ``Third'' and delete ``Second'' before ``Amended and 
Restated Bylaws'' in the heading to reflect that this would be the 
third amendment and restatement.
     Article VII (Miscellaneous), Section 7.9(A)(b) currently 
provides that, for so long as NYSE Group controls any of the NYSE 
Exchanges, any amendment to or repeal of the ICE Bylaws must either be 
(i) filed with or filed with and approved by the Commission under 
section 19 of the Exchange Act and the rules promulgated thereunder, or 
(ii) submitted to the boards of directors of the NYSE, NYSE Market 
(DE), NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE 
Alternext US LLC or the boards of directors of their successors, in 
each case only to the extent that such entity continues to be 
controlled directly or indirectly by ICE. Section 7.9(A)(b) would be 
amended to delete obsolete references to NYSE Market (DE) and NYSE 
Regulation, replace the outdated reference to ``NYSE Alternext US LLC'' 
with ``NYSE MKT LLC,'' and add NYSE National.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \18\ in general, and with Section 
6(b)(1) \19\ 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. The Exchange believes that 
the proposed changes to the corporate documents of the NYSE Group and 
its intermediary and ultimate parent entities, including the ICE bylaws 
and director independence policy, ICE Holdings bylaws and certificate 
of incorporation, NYSE Holdings operating agreement, and the NYSE Group 
bylaws and certificate of incorporation, to reflect the Acquisition, 
including updating corporate names, would contribute to the orderly 
operation of the Exchange by adding clarity and transparency to the 
Exchange's rules and would enable the Exchange to continue 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 amendment 
to the Bylaws is consistent with Section 6(b)(1).
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    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(1).
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    For similar reasons, the Exchange also believes that this filing 
furthers the objectives of Section 6(b)(5) of the Exchange Act \20\ 
because the proposed rule change would be consistent with and 
facilitate would create [sic] 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 proposed updates to the corporate documents and 
replacement of outdated or obsolete references removes impediments to 
and perfects the mechanism of a free and open market by removing 
confusion that may result from having these references in the governing 
documents following the Acquisition. The Exchange further believes that 
the proposal removes impediments to and perfects the mechanism of a 
free and open market by ensuring that persons subject to the Exchange's 
jurisdiction, regulators, and the investing public can more easily 
navigate and understand the governing documents. The Exchange further 
believes that eliminating an obsolete reference would not be 
inconsistent with the public interest and the protection of investors 
because investors will not be harmed and in fact would benefit from 
increased transparency, thereby reducing potential confusion. Removing 
such obsolete references will also further the goal of transparency and 
add clarity to the Exchange's rules.
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    \20\ 15 U.S.C. 78f(b)(5).
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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 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 updating the Exchange's rules to reflect the 
Acquisition and to remove obsolete references.

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 within such longer period 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 such 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2016-167 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-NYSEArca-2016-167. This 
file number should be included on the

[[Page 96107]]

subject line if email is used. To help the Commission process and 
review your comments more efficiently, please use only one method. The 
Commission will post all comments on the Commission's Internet Web site 
(http://www.sec.gov/rules/sro.shtml). Copies of the submission, all 
subsequent amendments, all written statements with respect to the 
proposed rule change that are filed with the Commission, and all 
written communications relating to the proposed rule change between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for Web site viewing and printing in the Commission's Public 
Reference Room, 100 F Street NE., Washington, DC 20549, on official 
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 
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; 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-NYSEArca-2016-167 and should be submitted on or before 
January 19, 2017.
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    \21\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31490 Filed 12-28-16; 8:45 am]
 BILLING CODE 8011-01-P