Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Temporary Commentary .10 Under NYSE American Rule 2.1210, 64595-64598 [2020-22634]

Download as PDF khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 198 / Tuesday, October 13, 2020 / Notices is equal to the price of the National Best Bid and Offer in the Eligible Security and does not lock or cross a previously displayed ‘‘automated quotation’’ (as defined under Rule 600 of Regulation NMS). The dollar value of size of a quote shall be determined by multiplying the price of a quote by its size. (j) Net Distributable Operating Income. The ‘‘Net Distributable Operating Income’’ for any particular calendar year shall mean: (i) All cash revenues, funds and proceeds received by the Company during such calendar year (other than Capital Contributions by the Members or amounts paid pursuant to Section 3.7(b) of this Agreement), including all revenues from (A) the CT Feeds, which includes the dissemination of information with respect to Eligible Securities to foreign marketplaces, and (B) FINRA quotation data and last sale information for securities classified as OTC Equity Securities under FINRA’s Rule 6400 Series (the ‘‘FINRA OTC Data’’) ((A) and (B) collectively, the ‘‘Data Feeds’’), and (C) any Membership Fees; less (ii) 6.25% of the revenue received by the Company during such calendar year attributable to the segment of the Data Feeds reflecting the dissemination of information with respect to Network C Securities and FINRA OTC Data (but, for the avoidance of doubt, not including revenue attributable to the segment of the Data Feeds reflecting the dissemination of information with respect to Network A Securities and Network B Securities), which amount shall be paid to FINRA as compensation for the FINRA OTC Data; 1 less (iii) reasonable working capital reserves and reasonable reserves for contingencies for such calendar year, as determined by the Operating Committee, and all costs and expenses of the Company during such calendar year, including: (A) All amounts payable during such calendar year to the Administrator pursuant to the Administrative Services Agreement or this Agreement; (B) all amounts payable during such calendar year to the Processors pursuant to the Processor Services Agreements or this Agreement; and (C) all amounts payable during such calendar year to third-party service providers engaged by or on behalf of the Company. 1All costs associated with collecting, consolidating, validating, generating, and disseminating the FINRA OTC Data are borne directly by FINRA and not the Company and the Members. VerDate Sep<11>2014 18:52 Oct 09, 2020 Jkt 253001 (k) Initial Eligibility. At the time a Member implements a Processorapproved electronic interface with the Processors, the Member will become eligible to receive revenue. (l) Quarterly Distributions. The Company shall cause the Administrator to provide Members with written estimates of each Member’s quarterly Net Distributable Operating Income within 45 calendar days of the end of the quarter, and estimated quarterly payments or billings shall be made on the basis of such estimates. All quarterly payments or billings shall be made to each eligible Member within 45 days following the end of each calendar quarter in which the Member is eligible to receive revenue; provided, that each quarterly payment or billing shall be reconciled against a Member’s cumulative year-to-date payment or billing received to date and adjusted accordingly; further, provided, that the total of such estimated payments or billings shall be reconciled at the end of each calendar year and, if necessary, adjusted by March 31st of the following year. Interest shall be included in quarterly payments and in adjusted payments made on March 31st of the following year. Such interest shall accrue monthly during the period in which revenue was earned and not yet paid and will be based on the 90-day Treasury bill rate in effect at the end of the quarter in which the payment is made. Monthly interest shall start accruing 45 days following the month in which it is earned and accrue until the date on which the payment is made. (m) Itemized Statements. In conjunction with calculating estimated quarterly and reconciled annual payments under this Exhibit D, the Company shall cause the Administrator to submit to the Members a quarterly itemized statement setting forth the basis upon which Net Distributable Operating Income was calculated. Such Net Distributable Operating Income shall be adjusted annually based solely on the quarterly itemized statement audited pursuant to the annual audit. The Company shall cause the Administrator to pay or bill Members for the audit adjustments within thirty days of completion of the annual audit. Upon the affirmative vote of Voting Representatives pursuant to Section 4.3, the Company shall cause the Administrator to engage an independent auditor to audit the Administrator’s costs or other calculation(s). PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 64595 Exhibit E Fees [To be determined by the Operating Committee under this Agreement] [FR Doc. 2020–22467 Filed 10–9–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–90115; File No. SR– NYSEAMER–2020–71] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Temporary Commentary .10 Under NYSE American Rule 2.1210 October 7, 2020. 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 September 25, 2020, NYSE American LLC (‘‘NYSE American’’ or the ‘‘Exchange’’) 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 a rule change to adopt temporary Commentary .10 (Temporary Extension of the Limited Period for Registered Persons to Function as Principals) under NYSE American Rule 2.1210 (Registration Requirements) applicable to member organizations, Equity Trading Permit (‘‘ETP’’) Holders and American Trading Permit (‘‘ATP’’) Holders. 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 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 E:\FR\FM\13OCN1.SGM 13OCN1 64596 Federal Register / Vol. 85, No. 198 / Tuesday, October 13, 2020 / Notices 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 khammond on DSKJM1Z7X2PROD with NOTICES The Exchange proposes to adopt temporary Commentary .10 (Temporary Extension of the Limited Period for Registered Persons to Function as Principals) under NYSE American Rule 2.1210 (Registration Requirements) applicable to member organizations, ETP Holders and ATP Holders (collectively, ‘‘Members’’).4 The proposed rule change would extend the 120-day period that certain individuals can function as a principal without having successfully passed an appropriate qualification examination through December 31, 2020,5 and would 4 The term ‘‘member organization’’ is defined in Rule 24 (Office Rules) as ‘‘a partnership, corporation or such other entity as the Exchange may, by Rule, permit to become a member organization, and which meets the qualifications specified in the Rules.’’ The term ‘‘member organization’’ is defined in Rule 2(b)(i) (Equities Rules) as a registered broker or dealer (unless exempt pursuant to the Securities Exchange Act of 1934) (the ‘‘Act’’) that is a member of the Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’) or another registered securities exchange. Member organizations that transact business with public customers or conduct business on the Floor of the Exchange shall at all times be members of FINRA. A registered broker or dealer must also be approved by the Exchange and authorized to designate an associated natural person to effect transactions on the floor of the Exchange or any facility thereof. This term shall include a natural person so registered, approved and licensed who directly effects transactions on the floor of the Exchange or any facility thereof.’’ The term ‘‘member organization’’ also includes any registered broker or dealer that is a member of FINRA or a registered securities exchange, consistent with the requirements of section 2(b)(i) of this Rule, which does not own a trading license and agrees to be regulated by the Exchange as a member organization and which the Exchange has agreed to regulate.’’ See Rule 2(a)(ii) (Equities Rules). The term ‘‘ETP Holder’’ means a member organization that has been issued an ETP. An ETP Holder will agree to be bound by the Rules of the Exchange, and by all applicable rules and regulations of the Securities and Exchange Commission. See Rule 1.1E(n). References to ‘‘member organization’’ as used in Exchange rules include ATP Holders, which are registered brokers or dealers approved to effect transactions on the Exchange’s options marketplace. Under the Exchange’s rules, an ATP Holder has the status as a ‘‘member’’ of the Exchange as that term is defined in Section 3 of the Act. See Rule 900.2NY(4) & (5). 5 If NYSE American seeks to provide additional temporary relief from the rule requirements identified in this proposed rule change beyond VerDate Sep<11>2014 18:52 Oct 09, 2020 Jkt 253001 apply only to those individuals who were designated to function as a principal prior to September 3, 2020. This proposed rule change is based on a filing recently submitted by the Financial Regulatory Authority, Inc. (‘‘FINRA’’) 6 and is intended to harmonize the Exchange’s registration rules with those of FINRA so as to promote uniform standards across the securities industry. In response to COVID–19, earlier this year FINRA began providing temporary relief by way of frequently asked questions (‘‘FAQs’’) 7 to address disruptions to the administration of FINRA qualification examinations caused by the pandemic that have significantly limited the ability of individuals to sit for examinations due to Prometric test center capacity issues.8 FINRA published the first FAQ on March 20, 2020, providing that individuals who were designated to function as principals under FINRA Rule 1210.04 9 prior to February 2, 2020, would be given until May 31, 2020, to pass the appropriate principal qualification examination.10 On May 19, 2020, FINRA extended the relief to pass the appropriate examination until June 30, 2020. Most recently, on June 29, 2020, FINRA again extended the temporary relief providing that individuals who were designated to function as principals under FINRA Rule 1210.04 prior to May 4, 2020, would be given until August 31, 2020, December 31, 2020, NYSE American will submit a separate rule filing to further extend the temporary extension of time. 6 See Securities Exchange Act Release No. 89732 (September 1, 2020), 85 FR 55535 (September 8, 2020) (SR–FINRA–2020–026) (the ‘‘FINRA Filing’’). The Exchange notes that the FINRA Filing also provides temporary relief to individuals registered with FINRA as Operations Professionals under FINRA Rule 1220. The Exchange does not have a registration category for Operations Professionals and therefore, the Exchange is not proposing to adopt that aspect of the FINRA Filing. 7 See https://www.finra.org/rules-guidance/keytopics/covid-19/faq#qe. 8 At the outset of the COVID–19 pandemic, all FINRA qualification examinations were administered at test centers operated by Prometric. Based on the health and welfare concerns resulting from COVID–19, in March Prometric closed all of its test centers in the United States and Canada and began to slowly reopen some of them at limited capacity in May. At this time, not all of these Prometric test centers have reopened at full capacity. 9 NYSE American Rule 2.1210.03 is the corresponding rule to FINRA Rule 1210.04. 10 FINRA Rule 1210.04 (Requirements for Registered Persons Functioning as Principals for a Limited Period) allows a member firm to designate certain individuals to function in a principal capacity for 120 calendar days before having to pass an appropriate principal qualification examination. NYSE American Rule 2.1210.03 provides the same allowance to Members. PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 to pass the appropriate principal qualification examination. One of the impacts of COVID–19 continues to be serious interruptions in the administration of FINRA qualification examinations at Prometric test centers and the limited ability of individuals to sit for the examinations.11 Although Prometric has begun reopening test centers, Prometric’s safety practices mean that currently not all test centers are open, some of the open test centers are at limited capacity, and some open test centers are delivering only certain examinations that have been deemed essential by the local government.12 Furthermore, Prometric has had to close some reopened test centers due to incidents of COVID–19 cases. The initial nationwide closure in March along with the inability to fully reopen all Prometric test centers due to COVID–19 have led to a significant backlog of individuals who are waiting to sit for FINRA examinations.13 In addition, firms are continuing to experience operational challenges with much of their personnel working from home due to shelter-in-place orders, restrictions on businesses and social activity imposed in various states, and adherence to other social distancing guidelines consistent with the recommendations of public health officials.14 As a result, firms continue to face potentially significant disruptions to their normal business operations that may include a limitation of in-person activities and staff absenteeism as a result of the health and welfare concerns stemming from COVID–19. Such potential disruptions may be further exacerbated and may even affect client services if firms cannot continue to keep principal positions filled as they may have difficulty finding other qualified individuals to transition into these roles or may need to reallocate employee time and resources away from other critical responsibilities at the firm. These ongoing, extenuating circumstances make it impracticable for Members to ensure that the individuals 11 Information about the continued impact of COVID–19 on FINRA-administered examinations is available at https://www.finra.org/rules-guidance/ keytopics/covid-19/exams. 12 Information from Prometric about its safety practices and the impact of COVID–19 on its operations is available at https:// www.prometric.com/corona-virus-update. See also supra note 11. 13 Although an online test delivery service has been launched to help address the backlog, the General Securities Principal Examination (Series 24) is not available online. See supra note 11. 14 See, e.g., Centers for Disease Control and Prevention, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/ prevent-gettingsick/prevention.html. E:\FR\FM\13OCN1.SGM 13OCN1 Federal Register / Vol. 85, No. 198 / Tuesday, October 13, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES whom they have designated to function in a principal capacity, as set forth in NYSE American Rule 2.1210.03, are able to successfully sit for and pass an appropriate qualification examination within the 120-calendar day period required under the rule, or to find other qualified staff to fill this position. The ongoing circumstances also require individuals to be exposed to the health risks associated with taking an inperson examination, because the General Securities Principal examination is not available online. Therefore, NYSE American is proposing to continue the temporary relief provided through the FINRA FAQs by adopting Rule 2.1210.10 to extend the 120-day period during which an individual can function as a principal before having to pass an applicable qualification examination until December 31, 2020.15 The proposed rule change would apply only to those individuals who were designated to function as a principal prior to September 3, 2020. Any individuals designated to function as a principal on or after September 3, 2020, would need to successfully pass an appropriate qualification examination within 120 days. NYSE American believes that this proposed continued extension of time is tailored to address the needs and constraints on a Member’s operations during the COVID–19 pandemic, without significantly compromising critical investor protection. The proposed extension of time will help to minimize the impact of COVID–19 on Members by providing continued flexibility so that Members can ensure that principal positions remain filled. The potential risks from the proposed extension of the 120-day period are mitigated by the Member’s continued requirement to supervise the activities of these designated individuals and ensure compliance with federal securities laws and regulations, as well as NYSE American rules. 2. Statutory Basis The proposed rule change is consistent with Section 6(b) of the Act,16 in general, and furthers the objectives of Section 6(b)(5),17 in particular, because 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 15 See supra note 5. U.S.C. 78f(b). 17 15 U.S.C. 78f(b)(5). 16 15 VerDate Sep<11>2014 18:52 Oct 09, 2020 Jkt 253001 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 proposed rule change is intended to minimize the impact of COVID–19 on Member operations by extending the 120-day period certain individuals may function as a principal without having successfully passed an appropriate qualification examination under NYSE American Rule 2.1210.03 until December 31, 2020. The proposed rule change does not relieve Members from maintaining, under the circumstances, a reasonably designed system to supervise the activities of their associated persons to achieve compliance with applicable securities laws and regulations, and with applicable NYSE American rules that directly serve investor protection. In a time when faced with unique challenges resulting from the COVID–19 pandemic, NYSE American believes that the proposed rule change is a sensible accommodation that will continue to afford Members the ability to ensure that critical positions are filled and client services maintained, while continuing to serve and promote the protection of investors and the public interest in this unique environment. 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 Act. The proposed rule change is intended to provide temporary relief given the impacts of the COVID–19 pandemic crisis and to also maintain consistency with the rules of other self-regulatory organizations (‘‘SROs’’) with respect to the registration requirements applicable to Members and their registered personnel. In that regard, the Exchange believes that any burden on competition would be clearly outweighed by providing Members with temporary relief in this unique environment while also ensuring clear and consistent requirements applicable across SROs and mitigating any risk of SROs implementing different standards in these important areas. In its filing, FINRA provides an abbreviated economic impact assessment maintaining that the changes are necessary to temporarily rebalance the attendant benefits and costs of the obligations under FINRA Rule 1210 in response to the impacts of the COVID– 19 pandemic that is equally applicable PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 64597 to the changes the Exchange proposes.18 The Exchange accordingly incorporates FINRA’s abbreviated economic impact assessment by reference. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act 19 and Rule 19b4(f)(6) 20 thereunder. A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, pursuant to Rule 19b–4(f)(6)(iii), the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. NYSE American has asked the Commission to waive the 30-day operative delay so that the proposed rule change may become operative immediately upon filing. As noted above, NYSE American stated that the temporary proposed rule change is based on a recent rule change by FINRA and is intended to harmonize NYSE American registration rules with those of FINRA to promote uniform standards across the securities industry.21 NYSE American states that it will also help minimize the impact of the COVID–19 outbreak on NYSE American Members’ operations by allowing them to keep principal positions filled and minimizing disruptions to client services and other critical responsibilities. The ongoing extenuating circumstances of the COVID–19 pandemic make it impractical to ensure that individuals designated to act in principal capacities 18 FINRA Filing, 85 FR at 55537. U.S.C. 78s(b)(3)(A). 20 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 4(f)(6)(iii) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. NYSE American has satisfied this requirement. 21 See supra note 6. 19 15 E:\FR\FM\13OCN1.SGM 13OCN1 64598 Federal Register / Vol. 85, No. 198 / Tuesday, October 13, 2020 / Notices are able to take and pass the appropriate qualification examination during the 120-calendar day period required under the rules. Shelter-in-place orders, quarantining, restrictions on business and social activity and adherence to other social distancing guidelines consistent with the recommendation of public officials remain in place in various states.22 Further, NYSE American states that Prometric test centers have experienced serious interruptions in the administration of FINRA qualification examinations, resulting in a backlog of individuals waiting to take these examinations. Following a nationwide closure of all test centers earlier in the year, some test centers have re-opened, but are operating at limited capacity or are only delivering certain examinations that have been deemed essential by the local government.23 FINRA has launched an online test delivery service to help address this backlog. However, the General Securities Principal (Series 24) Examination is not available online. NYSE American states that the temporary proposed rule change will provide needed flexibility to ensure that these positions remain filled and is tailored to address the constraints on Members’ operations during the COVID–19 pandemic without significantly compromising critical investor protection.24 The Commission also notes that the proposal provides only temporary relief from the requirement to pass certain qualification examinations within the 120-day period in the rules. As proposed, this relief would extend the 120-day period that certain individuals can function as principals through December 31, 2020. NYSE American has also stated that if it requires temporary relief from the rule requirements identified in this proposal beyond December 31, 2020, it may submit a separate rule filing to extend the effectiveness of the temporary relief under these rules.25 For these reasons, the Commission believes that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest.26 Accordingly, the 22 See supra note 14. supra notes 11 and 12. NYSE American states that Prometric has also had to close some reopened test centers due to incidents of COVID– 19 cases. 24 NYSE American states that Members remain subject to the continued requirement to supervise the activities of these designated individuals and ensure compliance with federal securities laws and regulations, as well as NYSE American rules. 25 See supra note 5. 26 As noted above by the Exchange, this proposed temporary change is based on a recent filing by FINRA that the Commission approved with a khammond on DSKJM1Z7X2PROD with NOTICES 23 See VerDate Sep<11>2014 18:52 Oct 09, 2020 Jkt 253001 Commission hereby waives the 30-day operative delay and designates the proposal operative upon filing.27 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSEAMER–2020–71 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–2020–71. 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 waiver of the 30-day operative delay. See supra note 6, 85 FR at 55538. 27 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule change’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). PO 00000 Frm 00158 Fmt 4703 Sfmt 4703 printing in the Commission’s Public Reference Room, on business days between the hours of 10:00 a.m. and 3:00 p.m., located at 100 F Street NE, Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of NYSE American. 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–2020–71 and should be submitted on or before November 3, 2020. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.28 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–22634 Filed 10–9–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–90104; File No. SR– NYSEArca–2020–84] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1, Amending NYSE Arca Rule 8.900–E To Adopt Generic Listing Standards for Managed Portfolio Shares October 7, 2020. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on September 22, 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. On October 2, 2020, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons. 28 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 E:\FR\FM\13OCN1.SGM 13OCN1

Agencies

[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Notices]
[Pages 64595-64598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22634]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90115; File No. SR-NYSEAMER-2020-71]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Adopt 
Temporary Commentary .10 Under NYSE American Rule 2.1210

October 7, 2020.
    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 September 25, 2020, NYSE American LLC (``NYSE American'' 
or the ``Exchange'') 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.
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    \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 a rule change to adopt temporary Commentary 
.10 (Temporary Extension of the Limited Period for Registered Persons 
to Function as Principals) under NYSE American Rule 2.1210 
(Registration Requirements) applicable to member organizations, Equity 
Trading Permit (``ETP'') Holders and American Trading Permit (``ATP'') 
Holders. 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

[[Page 64596]]

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
    The Exchange proposes to adopt temporary Commentary .10 (Temporary 
Extension of the Limited Period for Registered Persons to Function as 
Principals) under NYSE American Rule 2.1210 (Registration Requirements) 
applicable to member organizations, ETP Holders and ATP Holders 
(collectively, ``Members'').\4\ The proposed rule change would extend 
the 120-day period that certain individuals can function as a principal 
without having successfully passed an appropriate qualification 
examination through December 31, 2020,\5\ and would apply only to those 
individuals who were designated to function as a principal prior to 
September 3, 2020. This proposed rule change is based on a filing 
recently submitted by the Financial Regulatory Authority, Inc. 
(``FINRA'') \6\ and is intended to harmonize the Exchange's 
registration rules with those of FINRA so as to promote uniform 
standards across the securities industry.
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    \4\ The term ``member organization'' is defined in Rule 24 
(Office Rules) as ``a partnership, corporation or such other entity 
as the Exchange may, by Rule, permit to become a member 
organization, and which meets the qualifications specified in the 
Rules.'' The term ``member organization'' is defined in Rule 2(b)(i) 
(Equities Rules) as a registered broker or dealer (unless exempt 
pursuant to the Securities Exchange Act of 1934) (the ``Act'') that 
is a member of the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') or another registered securities exchange. Member 
organizations that transact business with public customers or 
conduct business on the Floor of the Exchange shall at all times be 
members of FINRA. A registered broker or dealer must also be 
approved by the Exchange and authorized to designate an associated 
natural person to effect transactions on the floor of the Exchange 
or any facility thereof. This term shall include a natural person so 
registered, approved and licensed who directly effects transactions 
on the floor of the Exchange or any facility thereof.'' The term 
``member organization'' also includes any registered broker or 
dealer that is a member of FINRA or a registered securities 
exchange, consistent with the requirements of section 2(b)(i) of 
this Rule, which does not own a trading license and agrees to be 
regulated by the Exchange as a member organization and which the 
Exchange has agreed to regulate.'' See Rule 2(a)(ii) (Equities 
Rules). The term ``ETP Holder'' means a member organization that has 
been issued an ETP. An ETP Holder will agree to be bound by the 
Rules of the Exchange, and by all applicable rules and regulations 
of the Securities and Exchange Commission. See Rule 1.1E(n). 
References to ``member organization'' as used in Exchange rules 
include ATP Holders, which are registered brokers or dealers 
approved to effect transactions on the Exchange's options 
marketplace. Under the Exchange's rules, an ATP Holder has the 
status as a ``member'' of the Exchange as that term is defined in 
Section 3 of the Act. See Rule 900.2NY(4) & (5).
    \5\ If NYSE American seeks to provide additional temporary 
relief from the rule requirements identified in this proposed rule 
change beyond December 31, 2020, NYSE American will submit a 
separate rule filing to further extend the temporary extension of 
time.
    \6\ See Securities Exchange Act Release No. 89732 (September 1, 
2020), 85 FR 55535 (September 8, 2020) (SR-FINRA-2020-026) (the 
``FINRA Filing''). The Exchange notes that the FINRA Filing also 
provides temporary relief to individuals registered with FINRA as 
Operations Professionals under FINRA Rule 1220. The Exchange does 
not have a registration category for Operations Professionals and 
therefore, the Exchange is not proposing to adopt that aspect of the 
FINRA Filing.
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    In response to COVID-19, earlier this year FINRA began providing 
temporary relief by way of frequently asked questions (``FAQs'') \7\ to 
address disruptions to the administration of FINRA qualification 
examinations caused by the pandemic that have significantly limited the 
ability of individuals to sit for examinations due to Prometric test 
center capacity issues.\8\
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    \7\ See https://www.finra.org/rules-guidance/key-topics/covid-19/faq#qe.
    \8\ At the outset of the COVID-19 pandemic, all FINRA 
qualification examinations were administered at test centers 
operated by Prometric. Based on the health and welfare concerns 
resulting from COVID-19, in March Prometric closed all of its test 
centers in the United States and Canada and began to slowly reopen 
some of them at limited capacity in May. At this time, not all of 
these Prometric test centers have reopened at full capacity.
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    FINRA published the first FAQ on March 20, 2020, providing that 
individuals who were designated to function as principals under FINRA 
Rule 1210.04 \9\ prior to February 2, 2020, would be given until May 
31, 2020, to pass the appropriate principal qualification 
examination.\10\ On May 19, 2020, FINRA extended the relief to pass the 
appropriate examination until June 30, 2020. Most recently, on June 29, 
2020, FINRA again extended the temporary relief providing that 
individuals who were designated to function as principals under FINRA 
Rule 1210.04 prior to May 4, 2020, would be given until August 31, 
2020, to pass the appropriate principal qualification examination.
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    \9\ NYSE American Rule 2.1210.03 is the corresponding rule to 
FINRA Rule 1210.04.
    \10\ FINRA Rule 1210.04 (Requirements for Registered Persons 
Functioning as Principals for a Limited Period) allows a member firm 
to designate certain individuals to function in a principal capacity 
for 120 calendar days before having to pass an appropriate principal 
qualification examination. NYSE American Rule 2.1210.03 provides the 
same allowance to Members.
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    One of the impacts of COVID-19 continues to be serious 
interruptions in the administration of FINRA qualification examinations 
at Prometric test centers and the limited ability of individuals to sit 
for the examinations.\11\ Although Prometric has begun reopening test 
centers, Prometric's safety practices mean that currently not all test 
centers are open, some of the open test centers are at limited 
capacity, and some open test centers are delivering only certain 
examinations that have been deemed essential by the local 
government.\12\ Furthermore, Prometric has had to close some reopened 
test centers due to incidents of COVID-19 cases. The initial nationwide 
closure in March along with the inability to fully reopen all Prometric 
test centers due to COVID-19 have led to a significant backlog of 
individuals who are waiting to sit for FINRA examinations.\13\
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    \11\ Information about the continued impact of COVID-19 on 
FINRA-administered examinations is available at https://www.finra.org/rules-guidance/keytopics/covid-19/exams.
    \12\ Information from Prometric about its safety practices and 
the impact of COVID-19 on its operations is available at https://www.prometric.com/corona-virus-update. See also supra note 11.
    \13\ Although an online test delivery service has been launched 
to help address the backlog, the General Securities Principal 
Examination (Series 24) is not available online. See supra note 11.
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    In addition, firms are continuing to experience operational 
challenges with much of their personnel working from home due to 
shelter-in-place orders, restrictions on businesses and social activity 
imposed in various states, and adherence to other social distancing 
guidelines consistent with the recommendations of public health 
officials.\14\ As a result, firms continue to face potentially 
significant disruptions to their normal business operations that may 
include a limitation of in-person activities and staff absenteeism as a 
result of the health and welfare concerns stemming from COVID-19. Such 
potential disruptions may be further exacerbated and may even affect 
client services if firms cannot continue to keep principal positions 
filled as they may have difficulty finding other qualified individuals 
to transition into these roles or may need to reallocate employee time 
and resources away from other critical responsibilities at the firm.
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    \14\ See, e.g., Centers for Disease Control and Prevention, How 
to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html.
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    These ongoing, extenuating circumstances make it impracticable for 
Members to ensure that the individuals

[[Page 64597]]

whom they have designated to function in a principal capacity, as set 
forth in NYSE American Rule 2.1210.03, are able to successfully sit for 
and pass an appropriate qualification examination within the 120-
calendar day period required under the rule, or to find other qualified 
staff to fill this position. The ongoing circumstances also require 
individuals to be exposed to the health risks associated with taking an 
in-person examination, because the General Securities Principal 
examination is not available online. Therefore, NYSE American is 
proposing to continue the temporary relief provided through the FINRA 
FAQs by adopting Rule 2.1210.10 to extend the 120-day period during 
which an individual can function as a principal before having to pass 
an applicable qualification examination until December 31, 2020.\15\ 
The proposed rule change would apply only to those individuals who were 
designated to function as a principal prior to September 3, 2020. Any 
individuals designated to function as a principal on or after September 
3, 2020, would need to successfully pass an appropriate qualification 
examination within 120 days.
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    \15\ See supra note 5.
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    NYSE American believes that this proposed continued extension of 
time is tailored to address the needs and constraints on a Member's 
operations during the COVID-19 pandemic, without significantly 
compromising critical investor protection. The proposed extension of 
time will help to minimize the impact of COVID-19 on Members by 
providing continued flexibility so that Members can ensure that 
principal positions remain filled. The potential risks from the 
proposed extension of the 120-day period are mitigated by the Member's 
continued requirement to supervise the activities of these designated 
individuals and ensure compliance with federal securities laws and 
regulations, as well as NYSE American rules.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\16\ in general, and furthers the objectives of Section 
6(b)(5),\17\ in particular, because 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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    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(5).
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    The proposed rule change is intended to minimize the impact of 
COVID-19 on Member operations by extending the 120-day period certain 
individuals may function as a principal without having successfully 
passed an appropriate qualification examination under NYSE American 
Rule 2.1210.03 until December 31, 2020. The proposed rule change does 
not relieve Members from maintaining, under the circumstances, a 
reasonably designed system to supervise the activities of their 
associated persons to achieve compliance with applicable securities 
laws and regulations, and with applicable NYSE American rules that 
directly serve investor protection. In a time when faced with unique 
challenges resulting from the COVID-19 pandemic, NYSE American believes 
that the proposed rule change is a sensible accommodation that will 
continue to afford Members the ability to ensure that critical 
positions are filled and client services maintained, while continuing 
to serve and promote the protection of investors and the public 
interest in this unique environment.

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 Act. The proposed rule change is 
intended to provide temporary relief given the impacts of the COVID-19 
pandemic crisis and to also maintain consistency with the rules of 
other self-regulatory organizations (``SROs'') with respect to the 
registration requirements applicable to Members and their registered 
personnel. In that regard, the Exchange believes that any burden on 
competition would be clearly outweighed by providing Members with 
temporary relief in this unique environment while also ensuring clear 
and consistent requirements applicable across SROs and mitigating any 
risk of SROs implementing different standards in these important areas. 
In its filing, FINRA provides an abbreviated economic impact assessment 
maintaining that the changes are necessary to temporarily rebalance the 
attendant benefits and costs of the obligations under FINRA Rule 1210 
in response to the impacts of the COVID-19 pandemic that is equally 
applicable to the changes the Exchange proposes.\18\ The Exchange 
accordingly incorporates FINRA's abbreviated economic impact assessment 
by reference.
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    \18\ FINRA Filing, 85 FR at 55537.
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-
4(f)(6) \20\ thereunder.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
NYSE American has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative for 30 days after the date of filing. However, 
pursuant to Rule 19b-4(f)(6)(iii), the Commission may designate a 
shorter time if such action is consistent with the protection of 
investors and the public interest. NYSE American has asked the 
Commission to waive the 30-day operative delay so that the proposed 
rule change may become operative immediately upon filing. As noted 
above, NYSE American stated that the temporary proposed rule change is 
based on a recent rule change by FINRA and is intended to harmonize 
NYSE American registration rules with those of FINRA to promote uniform 
standards across the securities industry.\21\ NYSE American states that 
it will also help minimize the impact of the COVID-19 outbreak on NYSE 
American Members' operations by allowing them to keep principal 
positions filled and minimizing disruptions to client services and 
other critical responsibilities. The ongoing extenuating circumstances 
of the COVID-19 pandemic make it impractical to ensure that individuals 
designated to act in principal capacities

[[Page 64598]]

are able to take and pass the appropriate qualification examination 
during the 120-calendar day period required under the rules. Shelter-
in-place orders, quarantining, restrictions on business and social 
activity and adherence to other social distancing guidelines consistent 
with the recommendation of public officials remain in place in various 
states.\22\ Further, NYSE American states that Prometric test centers 
have experienced serious interruptions in the administration of FINRA 
qualification examinations, resulting in a backlog of individuals 
waiting to take these examinations. Following a nationwide closure of 
all test centers earlier in the year, some test centers have re-opened, 
but are operating at limited capacity or are only delivering certain 
examinations that have been deemed essential by the local 
government.\23\ FINRA has launched an online test delivery service to 
help address this backlog. However, the General Securities Principal 
(Series 24) Examination is not available online. NYSE American states 
that the temporary proposed rule change will provide needed flexibility 
to ensure that these positions remain filled and is tailored to address 
the constraints on Members' operations during the COVID-19 pandemic 
without significantly compromising critical investor protection.\24\
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    \21\ See supra note 6.
    \22\ See supra note 14.
    \23\ See supra notes 11 and 12. NYSE American states that 
Prometric has also had to close some reopened test centers due to 
incidents of COVID-19 cases.
    \24\ NYSE American states that Members remain subject to the 
continued requirement to supervise the activities of these 
designated individuals and ensure compliance with federal securities 
laws and regulations, as well as NYSE American rules.
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    The Commission also notes that the proposal provides only temporary 
relief from the requirement to pass certain qualification examinations 
within the 120-day period in the rules. As proposed, this relief would 
extend the 120-day period that certain individuals can function as 
principals through December 31, 2020. NYSE American has also stated 
that if it requires temporary relief from the rule requirements 
identified in this proposal beyond December 31, 2020, it may submit a 
separate rule filing to extend the effectiveness of the temporary 
relief under these rules.\25\ For these reasons, the Commission 
believes that waiver of the 30-day operative delay is consistent with 
the protection of investors and the public interest.\26\ Accordingly, 
the Commission hereby waives the 30-day operative delay and designates 
the proposal operative upon filing.\27\
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    \25\ See supra note 5.
    \26\ As noted above by the Exchange, this proposed temporary 
change is based on a recent filing by FINRA that the Commission 
approved with a waiver of the 30-day operative delay. See supra note 
6, 85 FR at 55538.
    \27\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEAMER-2020-71 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-2020-71. 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, on business days between the 
hours of 10:00 a.m. and 3:00 p.m., located at 100 F Street NE, 
Washington, DC 20549. Copies of such filing also will be available for 
inspection and copying at the principal office of NYSE American. 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-2020-71 and should 
be submitted on or before November 3, 2020.
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    \28\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\28\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-22634 Filed 10-9-20; 8:45 am]
BILLING CODE 8011-01-P
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