Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Certificate of Incorporation of Its Parent Company NYSE Group, Inc., 20904-20906 [2018-09763]
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20904
Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Notices
should be submitted on or before May
29, 2018.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–09765 Filed 5–7–18; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–83159; File No. SR–
NYSEAMER–2018–16]
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Amend the Certificate
of Incorporation of Its Parent Company
NYSE Group, Inc.
May 3, 2018.
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 25,
2018, NYSE American LLC (the
‘‘Exchange’’ or ‘‘NYSE American’’) 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.
sradovich on DSK3GMQ082PROD with NOTICES
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Article X of the certificate of
incorporation of its parent company
NYSE Group, Inc. (‘‘NYSE Group’’) and
make certain technical and conforming
changes. The proposed rule change is
available on the Exchange’s website 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
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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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 the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend
Article X (Confidential Amendment) of
the Sixth Amended and Restated
Certificate of Incorporation of NYSE
Group (‘‘NYSE Group Certificate’’) and
make certain technical and conforming
changes.
NYSE Group owns all of the equity
interest in the Exchange and its national
securities exchange affiliates, the New
York Stock Exchange LLC (‘‘NYSE
LLC’’), NYSE Arca, Inc. (‘‘NYSE Arca’’),
and NYSE National, Inc. (‘‘NYSE
National’’). In turn, NYSE Group is a
wholly-owned subsidiary of NYSE
Holdings LLC (‘‘NYSE Holdings’’),
which is wholly owned by
Intercontinental Exchange Holdings,
Inc. (‘‘ICE Holdings’’). ICE Holdings is
wholly owned by Intercontinental
Exchange Inc. (‘‘ICE’’).4
In 2017, the Exchange amended the
certificates of incorporation, bylaws,
and operating agreements, as applicable,
of ICE, ICE Holdings, NYSE Holdings
and NYSE Group (collectively, the
‘‘Governing Documents’’).5 The changes
to the Governing Documents included,
among other things, amendments
streamlining references to ICE
subsidiaries that either are or control
national securities exchanges, deleting
references to other ICE subsidiaries, and
amending provisions relating to
confidential information.6 As a result of
4 ICE is a publicly traded company listed on the
NYSE.
5 The Governing Documents are the Fourth
Amended and Restated Certificate of Incorporation
of Intercontinental Exchange, Inc. (‘‘ICE
Certificate’’); Eighth Amended and Restated Bylaws
of Intercontinental Exchange, Inc. (‘‘ICE Bylaws’’);
Ninth Amended and Restated Certificate of
Incorporation of Intercontinental Exchange
Holdings, Inc. (‘‘ICE Holdings Certificate’’); Sixth
Amended and Restated Bylaws of Intercontinental
Exchange Holdings, Inc. (‘‘ICE Holdings Bylaws’’);
Ninth Amended and Restated Limited Liability
Company Agreement of NYSE Holdings LLC
(‘‘NYSE Holdings Operating Agreement’’); Fourth
Amended and Restated Bylaws of NYSE Group, Inc.
(‘‘NYSE Group Bylaws’’); and the NYSE Group
Certificate.
6 See Securities Exchange Act Release Nos. 82082
(November 15, 2017), 82 FR 55466 (November 21,
2017) (SR–NYSEAmer–2017–29) (notice of filing
and immediate effectiveness of proposed rule
change to amend the governing documents of the
Exchange’s intermediate parent companies)
(‘‘Holding Companies Release’’); and 80752 (May
PO 00000
Frm 00118
Fmt 4703
Sfmt 4703
the changes, ‘‘Exchange’’ is defined in
each Governing Document as a national
securities exchange registered under
Section 6 of the Exchange Act 7 that is
directly or indirectly controlled by the
relevant entity.8
In making such changes, lists of
specific entities were replaced with
‘‘Exchange’’ or ‘‘Exchanges,’’ as
applicable.9 For example, in Article XII,
clause (b) of the NYSE Group
Certificate, ‘‘the boards of directors of
New York Stock Exchange, NYSE Arca,
NYSE Arca Equities, NYSE MKT and
NYSE National or the boards of
directors of their successors’’ was
amended to ‘‘the boards of directors of
each Exchange.’’ 10
However, the NYSE Group Certificate
retains one list of specific entities,
which it proposes to amend now.
Specifically, in the first sentence of
Article X of the NYSE Group Certificate,
the Exchange proposes to replace ‘‘New
York Stock Exchange, NYSE Arca,
NYSE Arca Equities, NYSE MKT and
NYSE National’’ with ‘‘any Exchange, in
each case to the extent that such entities
continue to be controlled, directly or
indirectly, by the Corporation’’.11
The proposed change would not have
a substantive effect on what entities the
provision covers. As national securities
exchanges registered under Section 6 of
the Exchange Act 12 that are directly
controlled by NYSE Group, each of the
NYSE, NYSE Arca, NYSE MKT (now
NYSE American LLC) 13 and NYSE
National are ‘‘Exchanges’’ within the
24, 2017), 82 FR 25018 (May 31, 2017) (SR– NYSE–
2017–13; SR–NYSEArca–2017–29; SR– NYSEMKT–
2017–17; SR–NYSENAT–2017–01) (order approving
proposed rule changes to amend the certificate and
bylaws of the exchange’s ultimate parent company)
(‘‘Parent Company Release’’).
7 15 U.S.C. 78f.
8 See Holding Companies Release, supra note 6,
at 55467; ICE Certificate, Article V, Section A(3)(a);
ICE Bylaws, Article III, Section 3.15; ICE Holdings
Certificate, Article V, Section A(1); ICE Holdings
Bylaws, Article III, Section 3.15; NYSE Holdings
Operating Agreement, Article 1, Section 1.1; NYSE
Group Bylaws, Article VII, Article 7.9(b); and NYSE
Group Certificate, Article IV, Section 4(b)(1)(A).
9 See Holding Companies Release, supra note 6,
at 55467, and Parent Company Release, supra note
6, at 25019. Similarly, the terms ‘‘U.S. Regulated
Subsidiary,’’ ‘‘U.S. Regulated Subsidiaries,’’
‘‘Regulated Subsidiary,’’ and ‘‘Regulated
Subsidiaries’’ were replaced with ‘‘Exchange’’ or
‘‘Exchanges,’’ as applicable.
10 See Holding Companies Release, supra note 6,
note 12.
11 The Exchange’s affiliates NYSE LLC, NYSE
Arca, and NYSE National have each submitted
substantially the same proposed rule change to
propose the changes described herein. See SR–
NYSE–2018–18, SR–NYSEArca–2018–26, and SR–
NYSENAT–2018–05.
12 15 U.S.C. 78f.
13 ‘‘NYSE MKT LLC’’ changed its name to ‘‘NYSE
American LLC’’ in 2017. See Securities Exchange
Act Release Nos. 80283 (March 21, 2017), 82 FR
15244 (March 27, 2017) (SR–NYSEMKT–2017–14).
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Notices
scope of the definition. The reference to
NYSE Arca Equities is obsolete, as it has
been merged out of existence.14 As a
result, the change is non-substantive.
The Exchange notes that the proposed
amendment would make the first
sentence of Article X of the NYSE Group
Certificate more consistent with the use
of ‘‘Exchange’’ throughout the
Governing Documents, particularly in
the confidential information provisions
of the ICE Bylaws, the ICE Holdings
Bylaws, and the NYSE Holdings
Operating Agreement, all of which have
the text ‘‘any Exchange, in each case to
the extent that such entities continue to
be controlled, directly or indirectly, by
the’’ Corporation or Company, as
applicable.15
In addition, technical and conforming
changes would be made to the title,
recitals, effective time, date and
signature line of the NYSE Group
Certificate.
2. Statutory Basis
sradovich on DSK3GMQ082PROD with NOTICES
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Exchange Act 16 in
general, and with Section 6(b)(1) 17 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 rule change 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, because the proposed
change would add further clarity and
transparency to the Exchange’s rules
without having a substantive effect on
which entities the provision would
cover. As national securities exchanges
registered under Section 6 of the
Exchange Act 18 that are directly
controlled by NYSE Group, each of the
NYSE LLC, NYSE Arca, NYSE American
14 See Securities Exchange Act Release No. 81419
(August 17, 2017), 82 FR 40044 (August 23, 2017)
(SR–NYSEArca–2017–40).
15 See ICE Bylaws, Article VIII, Section 8.1; ICE
Holdings Bylaws, Article VIII, Section 8.1; and
NYSE Holdings Operating Agreement, Article XII,
Section 12.1. See also Holding Companies Release,
supra note 6, at 55469.
16 15 U.S.C. 78f(b).
17 15 U.S.C. 78f(b)(1).
18 15 U.S.C. 78f.
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18:41 May 07, 2018
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and NYSE National fall within the scope
of the definition of ‘‘Exchange.’’ In
addition, removing the obsolete
reference to NYSE Arca Equities would
contribute to the orderly operation of
the Exchange by adding clarity and
transparency to the Exchange’s rules.
The Exchange believes that the
proposed technical and conforming
changes to the title, recitals, effective
time, date and signature line of the
NYSE Group Certificate would
contribute to the orderly operation of
the Exchange by adding clarity and
transparency to its rules.
Further, the Exchange notes that the
Exchange Act definition of ‘‘exchange’’
states that ‘‘exchange’’ ‘‘includes the
market place and the market facilities
maintained by such exchange.’’ 19
Accordingly, any market places and
market facilities maintained by the
Exchange would fall within the
definition of ‘‘Exchange’’ and therefore
would fall within the scope of Article X
of the NYSE Group Certificate.
For similar reasons, the Exchange also
believes that the proposed rule change
is consistent with Section 6(b)(5) of the
Act,20 in that it 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 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.
The Exchange believes that the
proposed rule change would remove
impediments to and perfect the
mechanism of a free and open market
and a national market system by
simplifying and streamlining the
Exchange’s rules and removing an
obsolete reference, thereby ensuring that
market participants can more easily
navigate, understand and comply with
its rules. In this manner, the proposed
change would ensure that persons
subject to the Exchange’s jurisdiction,
regulators, and the investing public can
more easily navigate and understand the
NYSE Group Certificate.
In addition, the Exchange believes
that the proposed rule change would
remove impediments to and perfect the
mechanism of a free and open market
and a national market system, because
the proposed change would conform the
text of Article X with the use of
‘‘Exchange’’ throughout the Governing
Documents, generally, and with the
confidential information provisions of
19 15
20 15
PO 00000
U.S.C. 78c(a)(1).
U.S.C. 78f(b)(5).
Frm 00119
Fmt 4703
20905
the ICE Bylaws, the ICE Holdings
Bylaws, and the NYSE Holdings
Operating Agreement, more specifically.
As a result, the Governing Documents
would be more consistent and persons
subject to the Exchange’s jurisdiction,
regulators, and the investing public
could more easily navigate and
understand the NYSE Group Certificate
and the other Governing Documents.
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
designed to address any competitive
issue but rather is meant to update and
streamline the NYSE Group Certificate
to make it more consistent with the use
of ‘‘Exchange’’ throughout the
Governing Documents and the
confidential information provisions in
the ICE Bylaws, the ICE Holdings
Bylaws, and the NYSE Holdings
Operating Agreement. The Exchange
believes that the proposed rule change
will serve to promote clarity and
consistency, thereby reducing burdens
on the marketplace and facilitating
investor protection. The proposed rule
change would result in no concentration
or other changes of ownership of
exchanges.
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
Because the foregoing proposed rule
change does not:
(i) Significantly affect the protection
of investors or the public interest;
(ii) impose any significant burden on
competition; and
(iii) become operative for 30 days
from the date on which it was filed, or
such shorter time as the Commission
may designate, it has become effective
pursuant to Section 19(b)(3)(A) of the
Act and Rule 19b-4(f)(6) thereunder.21
21 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires a self-regulatory organization to give
the Commission written notice of its intent to file
the proposed rule change, along with a brief
description and text of the proposed rule change,
at least five business days prior to the date of filing
of the proposed rule change, or such shorter time
Continued
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20906
Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Notices
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act.
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:
sradovich on DSK3GMQ082PROD with NOTICES
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–
NYSEAmer–2018–16 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–NYSEAmer–2018–16. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (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 website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change.
Persons submitting comments are
cautioned that we do not redact or edit
personal identifying information from
comment submissions. You should
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–NYSEAmer–2018–16, and
should be submitted on or before May
29, 2018.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–09763 Filed 5–7–18; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–83154; File No. SR–FINRA–
2018–016]
Self-Regulatory Organizations;
Financial Industry Regulatory
Authority, Inc.; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change Relating to FINRA Rule
3310 to Conform FINRA Rule 3310 to
FinCEN’s Final Rule on Customer Due
Diligence Requirements for Financial
Institutions
May 2, 2018.
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 20,
2018, Financial Industry Regulatory
Authority, Inc. (‘‘FINRA’’) filed with the
Securities and Exchange Commission
(‘‘SEC’’ or ‘‘Commission’’) the proposed
rule change as described in Items I, II,
and III below, which Items have been
prepared by FINRA. FINRA has
designated the proposed rule change as
constituting a ‘‘non-controversial’’ rule
change under paragraph (f)(6) of Rule
19b–4 under the Act,3 which renders
the proposal effective upon receipt of
this filing by the Commission. 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
FINRA is proposing to amend FINRA
Rule 3310 (Anti-Money Laundering
Compliance Program) to reflect the
Financial Crimes Enforcement
Network’s (‘‘FinCEN’’) adoption of a
final rule on Customer Due Diligence
Requirements for Financial Institutions
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 17 CFR 240.19b–4(f)(6).
1 15
as designated by the Commission. The Exchange
has satisfied this requirement.
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18:41 May 07, 2018
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PO 00000
Frm 00120
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Sfmt 4703
(‘‘CDD Rule’’). Specifically, the
proposed amendments would conform
FINRA Rule 3310 to the CDD Rule’s
amendments to the minimum regulatory
requirements for member firms’ antimoney laundering (‘‘AML’’) compliance
programs by requiring such programs to
include risk-based procedures for
conducting ongoing customer due
diligence. This ongoing customer due
diligence element for AML programs
includes: (1) Understanding the nature
and purpose of customer relationships
for the purpose of developing a
customer risk profile; and (2)
conducting ongoing monitoring to
identify and report suspicious
transactions and, on a risk basis, to
maintain and update customer
information.
The text of the proposed rule change
is available on FINRA’s website at
https://www.finra.org, at the principal
office of FINRA 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,
FINRA included statements concerning
the purpose of and basis for the
proposed rule change and discussed any
comments it received on the proposed
rule change. The text of these statements
may be examined at the places specified
in Item IV below. FINRA has prepared
summaries, set forth in sections A, B,
and C below, of the most significant
aspects of such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
a. Background
The Bank Secrecy Act 4 (‘‘BSA’’),
among other things, requires financial
institutions,5 including broker-dealers,
to develop and implement AML
programs that, at a minimum, meet the
statutorily enumerated ‘‘four pillars.’’ 6
These four pillars currently require
broker-dealers to have written AML
programs that include, at a minimum:
• The establishment and
implementation of policies, procedures
and internal controls reasonably
designed to achieve compliance with
the applicable provisions of the BSA
and implementing regulations;
4 31
U.S.C. 5311, et seq.
31 U.S.C. 5312(a)(2) (defining ‘‘financial
institution’’).
6 31 U.S.C. 5318(h)(1).
5 See
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]]>Agencies
[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Notices]
[Pages 20904-20906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09763]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-83159; File No. SR-NYSEAMER-2018-16]
Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the
Certificate of Incorporation of Its Parent Company NYSE Group, Inc.
May 3, 2018.
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 25, 2018, NYSE American LLC (the ``Exchange'' or
``NYSE American'') 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.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Article X of the certificate of
incorporation of its parent company NYSE Group, Inc. (``NYSE Group'')
and make certain technical and conforming changes. The proposed rule
change is available on the Exchange's website 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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend Article X (Confidential Amendment)
of the Sixth Amended and Restated Certificate of Incorporation of NYSE
Group (``NYSE Group Certificate'') and make certain technical and
conforming changes.
NYSE Group owns all of the equity interest in the Exchange and its
national securities exchange affiliates, the New York Stock Exchange
LLC (``NYSE LLC''), NYSE Arca, Inc. (``NYSE Arca''), and NYSE National,
Inc. (``NYSE National''). In turn, NYSE Group is a wholly-owned
subsidiary of NYSE Holdings LLC (``NYSE Holdings''), which is wholly
owned by Intercontinental Exchange Holdings, Inc. (``ICE Holdings'').
ICE Holdings is wholly owned by Intercontinental Exchange Inc.
(``ICE'').\4\
---------------------------------------------------------------------------
\4\ ICE is a publicly traded company listed on the NYSE.
---------------------------------------------------------------------------
In 2017, the Exchange amended the certificates of incorporation,
bylaws, and operating agreements, as applicable, of ICE, ICE Holdings,
NYSE Holdings and NYSE Group (collectively, the ``Governing
Documents'').\5\ The changes to the Governing Documents included, among
other things, amendments streamlining references to ICE subsidiaries
that either are or control national securities exchanges, deleting
references to other ICE subsidiaries, and amending provisions relating
to confidential information.\6\ As a result of the changes,
``Exchange'' is defined in each Governing Document as a national
securities exchange registered under Section 6 of the Exchange Act \7\
that is directly or indirectly controlled by the relevant entity.\8\
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\5\ The Governing Documents are the Fourth Amended and Restated
Certificate of Incorporation of Intercontinental Exchange, Inc.
(``ICE Certificate''); Eighth Amended and Restated Bylaws of
Intercontinental Exchange, Inc. (``ICE Bylaws''); Ninth Amended and
Restated Certificate of Incorporation of Intercontinental Exchange
Holdings, Inc. (``ICE Holdings Certificate''); Sixth Amended and
Restated Bylaws of Intercontinental Exchange Holdings, Inc. (``ICE
Holdings Bylaws''); Ninth Amended and Restated Limited Liability
Company Agreement of NYSE Holdings LLC (``NYSE Holdings Operating
Agreement''); Fourth Amended and Restated Bylaws of NYSE Group, Inc.
(``NYSE Group Bylaws''); and the NYSE Group Certificate.
\6\ See Securities Exchange Act Release Nos. 82082 (November 15,
2017), 82 FR 55466 (November 21, 2017) (SR-NYSEAmer-2017-29) (notice
of filing and immediate effectiveness of proposed rule change to
amend the governing documents of the Exchange's intermediate parent
companies) (``Holding Companies Release''); and 80752 (May 24,
2017), 82 FR 25018 (May 31, 2017) (SR- NYSE-2017-13; SR-NYSEArca-
2017-29; SR- NYSEMKT-2017-17; SR-NYSENAT-2017-01) (order approving
proposed rule changes to amend the certificate and bylaws of the
exchange's ultimate parent company) (``Parent Company Release'').
\7\ 15 U.S.C. 78f.
\8\ See Holding Companies Release, supra note 6, at 55467; ICE
Certificate, Article V, Section A(3)(a); ICE Bylaws, Article III,
Section 3.15; ICE Holdings Certificate, Article V, Section A(1); ICE
Holdings Bylaws, Article III, Section 3.15; NYSE Holdings Operating
Agreement, Article 1, Section 1.1; NYSE Group Bylaws, Article VII,
Article 7.9(b); and NYSE Group Certificate, Article IV, Section
4(b)(1)(A).
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In making such changes, lists of specific entities were replaced
with ``Exchange'' or ``Exchanges,'' as applicable.\9\ For example, in
Article XII, clause (b) of the NYSE Group Certificate, ``the boards of
directors of New York Stock Exchange, NYSE Arca, NYSE Arca Equities,
NYSE MKT and NYSE National or the boards of directors of their
successors'' was amended to ``the boards of directors of each
Exchange.'' \10\
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\9\ See Holding Companies Release, supra note 6, at 55467, and
Parent Company Release, supra note 6, at 25019. Similarly, the terms
``U.S. Regulated Subsidiary,'' ``U.S. Regulated Subsidiaries,''
``Regulated Subsidiary,'' and ``Regulated Subsidiaries'' were
replaced with ``Exchange'' or ``Exchanges,'' as applicable.
\10\ See Holding Companies Release, supra note 6, note 12.
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However, the NYSE Group Certificate retains one list of specific
entities, which it proposes to amend now. Specifically, in the first
sentence of Article X of the NYSE Group Certificate, the Exchange
proposes to replace ``New York Stock Exchange, NYSE Arca, NYSE Arca
Equities, NYSE MKT and NYSE National'' with ``any Exchange, in each
case to the extent that such entities continue to be controlled,
directly or indirectly, by the Corporation''.\11\
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\11\ The Exchange's affiliates NYSE LLC, NYSE Arca, and NYSE
National have each submitted substantially the same proposed rule
change to propose the changes described herein. See SR-NYSE-2018-18,
SR-NYSEArca-2018-26, and SR-NYSENAT-2018-05.
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The proposed change would not have a substantive effect on what
entities the provision covers. As national securities exchanges
registered under Section 6 of the Exchange Act \12\ that are directly
controlled by NYSE Group, each of the NYSE, NYSE Arca, NYSE MKT (now
NYSE American LLC) \13\ and NYSE National are ``Exchanges'' within the
[[Page 20905]]
scope of the definition. The reference to NYSE Arca Equities is
obsolete, as it has been merged out of existence.\14\ As a result, the
change is non-substantive.
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\12\ 15 U.S.C. 78f.
\13\ ``NYSE MKT LLC'' changed its name to ``NYSE American LLC''
in 2017. See Securities Exchange Act Release Nos. 80283 (March 21,
2017), 82 FR 15244 (March 27, 2017) (SR-NYSEMKT-2017-14).
\14\ See Securities Exchange Act Release No. 81419 (August 17,
2017), 82 FR 40044 (August 23, 2017) (SR-NYSEArca-2017-40).
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The Exchange notes that the proposed amendment would make the first
sentence of Article X of the NYSE Group Certificate more consistent
with the use of ``Exchange'' throughout the Governing Documents,
particularly in the confidential information provisions of the ICE
Bylaws, the ICE Holdings Bylaws, and the NYSE Holdings Operating
Agreement, all of which have the text ``any Exchange, in each case to
the extent that such entities continue to be controlled, directly or
indirectly, by the'' Corporation or Company, as applicable.\15\
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\15\ See ICE Bylaws, Article VIII, Section 8.1; ICE Holdings
Bylaws, Article VIII, Section 8.1; and NYSE Holdings Operating
Agreement, Article XII, Section 12.1. See also Holding Companies
Release, supra note 6, at 55469.
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In addition, technical and conforming changes would be made to the
title, recitals, effective time, date and signature line of the NYSE
Group Certificate.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \16\ in general, and with Section
6(b)(1) \17\ 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.
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\16\ 15 U.S.C. 78f(b).
\17\ 15 U.S.C. 78f(b)(1).
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The Exchange believes that the proposed rule change 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, because the proposed change would
add further clarity and transparency to the Exchange's rules without
having a substantive effect on which entities the provision would
cover. As national securities exchanges registered under Section 6 of
the Exchange Act \18\ that are directly controlled by NYSE Group, each
of the NYSE LLC, NYSE Arca, NYSE American and NYSE National fall within
the scope of the definition of ``Exchange.'' In addition, removing the
obsolete reference to NYSE Arca Equities would contribute to the
orderly operation of the Exchange by adding clarity and transparency to
the Exchange's rules. The Exchange believes that the proposed technical
and conforming changes to the title, recitals, effective time, date and
signature line of the NYSE Group Certificate would contribute to the
orderly operation of the Exchange by adding clarity and transparency to
its rules.
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\18\ 15 U.S.C. 78f.
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Further, the Exchange notes that the Exchange Act definition of
``exchange'' states that ``exchange'' ``includes the market place and
the market facilities maintained by such exchange.'' \19\ Accordingly,
any market places and market facilities maintained by the Exchange
would fall within the definition of ``Exchange'' and therefore would
fall within the scope of Article X of the NYSE Group Certificate.
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\19\ 15 U.S.C. 78c(a)(1).
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For similar reasons, the Exchange also believes that the proposed
rule change is consistent with Section 6(b)(5) of the Act,\20\ in that
it 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 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.
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\20\ 15 U.S.C. 78f(b)(5).
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The Exchange believes that the proposed rule change would remove
impediments to and perfect the mechanism of a free and open market and
a national market system by simplifying and streamlining the Exchange's
rules and removing an obsolete reference, thereby ensuring that market
participants can more easily navigate, understand and comply with its
rules. In this manner, the proposed change would ensure that persons
subject to the Exchange's jurisdiction, regulators, and the investing
public can more easily navigate and understand the NYSE Group
Certificate.
In addition, the Exchange believes that the proposed rule change
would remove impediments to and perfect the mechanism of a free and
open market and a national market system, because the proposed change
would conform the text of Article X with the use of ``Exchange''
throughout the Governing Documents, generally, and with the
confidential information provisions of the ICE Bylaws, the ICE Holdings
Bylaws, and the NYSE Holdings Operating Agreement, more specifically.
As a result, the Governing Documents would be more consistent and
persons subject to the Exchange's jurisdiction, regulators, and the
investing public could more easily navigate and understand the NYSE
Group Certificate and the other Governing Documents.
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 designed to address any competitive issue but rather is
meant to update and streamline the NYSE Group Certificate to make it
more consistent with the use of ``Exchange'' throughout the Governing
Documents and the confidential information provisions in the ICE
Bylaws, the ICE Holdings Bylaws, and the NYSE Holdings Operating
Agreement. The Exchange believes that the proposed rule change will
serve to promote clarity and consistency, thereby reducing burdens on
the marketplace and facilitating investor protection. The proposed rule
change would result in no concentration or other changes of ownership
of exchanges.
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
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public
interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate, it has
become effective pursuant to Section 19(b)(3)(A) of the Act and Rule
19b-4(f)(6) thereunder.\21\
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\21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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[[Page 20906]]
At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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 [email protected]. Please include
File Number SR-NYSEAmer-2018-16 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-NYSEAmer-2018-16. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEAmer-2018-16, and should be
submitted on or before May 29, 2018.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
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\22\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-09763 Filed 5-7-18; 8:45 am]
BILLING CODE 8011-01-P
