Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Temporary Commentary .10 Under NYSE Arca Rule 2.1210, 65110-65113 [2020-22632]
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Federal Register / Vol. 85, No. 199 / Wednesday, October 14, 2020 / Notices
proposed rule change to be operative
upon filing.21
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
change should be approved or
disapproved.
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–NYSE–2020–84 and should
be submitted on or before November 4,
2020.
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:
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
J. Matthew DeLesDernier,
Assistant Secretary.
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–
NYSE–2020–84 on the subject line.
SECURITIES AND EXCHANGE
COMMISSION
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–NYSE–2020–84. 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 20549–1090, on official
21 For purposes only of waiving the 30-day
operative delay, the Commission has also
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
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[FR Doc. 2020–22715 Filed 10–13–20; 8:45 am]
BILLING CODE 8011–01–P
[Release No. 34–90113; File No. SR–
NYSEARCA–2020–87]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Adopt Temporary
Commentary .10 Under NYSE Arca
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 Arca, Inc.
(‘‘NYSE Arca’’ 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
Arca Rule 2.1210 (Registration
Requirements) applicable to Equity
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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Trading Permit (‘‘ETP’’) Holders,
Options Trading Permit (‘‘OTP’’)
Holders or OTP Firms. 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
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 Arca Rule
2.1210 (Registration Requirements)
applicable to ETP Holders, OTP Holders
or OTP Firms (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
4 The term ‘‘ETP Holder’’ refers to a sole
proprietorship, partnership, corporation, limited
liability company or other organization in good
standing that has been issued an ETP. An ETP
Holder must be a registered broker or dealer
pursuant to Section 15 of the Act. See Rule 1.1(o).
The term ‘‘ETP’’ refers to an Equity Trading Permit
issued by the Exchange for effecting approved
securities transactions on the Exchange’s Trading
Facilities. See Rule 1.1(n). The term ‘‘OTP Holder’’
refers to a natural person, in good standing, who
has been issued an OTP. An OTP Holder must be
a registered broker or dealer pursuant to Section 15
of the Act. Under the Exchange’s rules, an OTP
Holder has the status as a ‘‘member’’ of the
Exchange as that term is defined in Section 3 of the
Act. See Rule 1.1(nn). The term ‘‘OTP’’ refers to an
Options Trading Permit issued by the Exchange for
effecting approved securities transactions on the
Exchange’s Trading Facilities. See Rule 1.1(mm).
The term ‘‘OTP Firm’’ refers to a sole
proprietorship, partnership, corporation, limited
liability company or other organization in good
standing who holds an OTP or upon whom an
individual OTP Holder has conferred trading
privileges on the Exchange’s Trading Facilities
pursuant to and in compliance with Exchange rules.
An OTP Firm must be a registered broker or dealer
pursuant to Section 15 of the Act. See Rule 1.1(oo).
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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.
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
5 If NYSE Arca seeks to provide additional
temporary relief from the rule requirements
identified in this proposed rule change beyond
December 31, 2020, NYSE Arca 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 Arca 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 Arca Rule 2.1210.03 provides the same
allowance to Members.
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Rule 1210.04 prior to May 4, 2020,
would be given until August 31, 2020,
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
whom they have designated to function
in a principal capacity, as set forth in
NYSE Arca 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 Arca 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 Arca 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 Arca rules.
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.
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
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15 See
supra note 5.
U.S.C. 78f(b).
17 15 U.S.C. 78f(b)(5).
16 15
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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 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
Arca 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 Arca rules that
directly serve investor protection. In a
time when faced with unique challenges
resulting from the COVID–19 pandemic,
NYSE Arca 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
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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 19b–
4(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 Arca 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 Arca
stated that the temporary proposed rule
change is based on a recent rule change
by FINRA and is intended to harmonize
NYSE Arca’s registration rules with
those of FINRA to promote uniform
standards across the securities
industry.21 NYSE Arca states that it will
also help minimize the impact of the
COVID–19 outbreak on NYSE Arca
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
are able to take and pass the appropriate
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 Arca has
satisfied this requirement.
21 See supra note 6.
19 15
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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 Arca
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 Arca 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 Arca 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
22 See
supra note 14.
supra notes 11 and 12. NYSE Arca states
that Prometric has also had to close some reopened
test centers due to incidents of COVID–19 cases.
24 NYSE Arca 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 Arca 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
waiver of the 30-day operative delay. See supra
note 6, 85 FR at 55538.
23 See
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Federal Register / Vol. 85, No. 199 / Wednesday, October 14, 2020 / Notices
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:
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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–
NYSEARCA–2020–87 on the subject
line.
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEARCA–2020–87. 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
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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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 Arca. 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–NYSEARCA–2020–87 and
should be submitted on or before
November 4, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.28
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–22632 Filed 10–13–20; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–90129; File No. SR–FINRA–
2020–024]
Self-Regulatory Organizations;
Financial Industry Regulatory
Authority, Inc.; Notice of Designation
of Longer Period for Commission
Action on a Proposed Rule Change To
Delete the FINRA Order Audit Trail
System (OATS) Rules
October 8, 2020.
On August 14, 2020, the Financial
Industry Regulatory Authority, Inc.
(‘‘FINRA’’) filed with the Securities and
Exchange Commission (‘‘Commission’’),
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a
proposal to eliminate the Order Audit
Trail System (‘‘OATS’’) rules in the
FINRA Rule 7400 Series and FINRA
Rule 4554 (Alternative Trading
Systems—Recording and Reporting
Requirements of Order and Execution
Information for NMS Stocks) once
members are effectively reporting to the
consolidated audit trail (‘‘CAT’’) and the
CAT’s accuracy and reliability meet
certain standards. The proposed rule
change was published for comment in
the Federal Register on September 1,
2020.3 The Commission has received
28 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release No. 89679
(August 26, 2020), 85 FR 54461.
1 15
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three comments on the proposed rule
change.4
Section 19(b)(2) of the Act 5 provides
that, within 45 days of the publication
of the notice of the filing of a proposed
rule change, or within such longer
period up to 90 days as the Commission
may designate if it finds such longer
period to be appropriate and publishes
its reasons for so finding or as to which
the self-regulatory organization
consents, the Commission shall either
approve the proposed rule change,
disapprove the proposed rule change, or
institute proceedings to determine
whether the proposed rule change
should be disapproved. The 45th day
after publication of the notice for this
proposed rule change is October 16,
2020.
The Commission is extending the 45day time period for Commission action
on the proposed rule change. The
Commission finds that it is appropriate
to designate a longer period within
which to take action on the proposed
rule change so that it has sufficient time
to consider the proposed rule change.
Accordingly, pursuant to Section
19(b)(2) of the Act,6 the Commission
designates November 30, 2020 as the
date by which the Commission shall
either approve, disapprove, or institute
proceedings to determine whether to
disapprove, the proposed rule change
(File No. SR–FINRA–2020–024).
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.7
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–22712 Filed 10–13–20; 8:45 am]
BILLING CODE 8011–01–P
4 See Letters from William J. Leahy, Head of
Regulatory Compliance, Refinitiv Wealth
Management, September 22, 2020; Howard
Meyerson, Managing Director, Financial
Information Forum, dated September 22, 2020; and
Ellen Greene, Managing Director, Equity & Options
Market Structure, dated September 24, 2020.
5 15 U.S.C. 78s(b)(2).
6 15 U.S.C. 78s(b)(2)(A)(ii)(I).
7 17 CFR 200.30–3(a)(31).
E:\FR\FM\14OCN1.SGM
14OCN1
Agencies
[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Notices]
[Pages 65110-65113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22632]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-90113; File No. SR-NYSEARCA-2020-87]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Adopt Temporary
Commentary .10 Under NYSE Arca 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 Arca, Inc. (``NYSE Arca'' 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 Arca Rule 2.1210 (Registration
Requirements) applicable to Equity Trading Permit (``ETP'') Holders,
Options Trading Permit (``OTP'') Holders or OTP Firms. 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
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 Arca Rule 2.1210 (Registration Requirements)
applicable to ETP Holders, OTP Holders or OTP Firms (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
[[Page 65111]]
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 ``ETP Holder'' refers to a sole proprietorship,
partnership, corporation, limited liability company or other
organization in good standing that has been issued an ETP. An ETP
Holder must be a registered broker or dealer pursuant to Section 15
of the Act. See Rule 1.1(o). The term ``ETP'' refers to an Equity
Trading Permit issued by the Exchange for effecting approved
securities transactions on the Exchange's Trading Facilities. See
Rule 1.1(n). The term ``OTP Holder'' refers to a natural person, in
good standing, who has been issued an OTP. An OTP Holder must be a
registered broker or dealer pursuant to Section 15 of the Act. Under
the Exchange's rules, an OTP Holder has the status as a ``member''
of the Exchange as that term is defined in Section 3 of the Act. See
Rule 1.1(nn). The term ``OTP'' refers to an Options Trading Permit
issued by the Exchange for effecting approved securities
transactions on the Exchange's Trading Facilities. See Rule 1.1(mm).
The term ``OTP Firm'' refers to a sole proprietorship, partnership,
corporation, limited liability company or other organization in good
standing who holds an OTP or upon whom an individual OTP Holder has
conferred trading privileges on the Exchange's Trading Facilities
pursuant to and in compliance with Exchange rules. An OTP Firm must
be a registered broker or dealer pursuant to Section 15 of the Act.
See Rule 1.1(oo).
\5\ If NYSE Arca seeks to provide additional temporary relief
from the rule requirements identified in this proposed rule change
beyond December 31, 2020, NYSE Arca 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 Arca 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 Arca 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 whom they have designated to
function in a principal capacity, as set forth in NYSE Arca 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 Arca 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 Arca 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 Arca 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
[[Page 65112]]
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 Arca 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 Arca rules that directly serve investor
protection. In a time when faced with unique challenges resulting from
the COVID-19 pandemic, NYSE Arca 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 Arca 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 Arca 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 Arca
stated that the temporary proposed rule change is based on a recent
rule change by FINRA and is intended to harmonize NYSE Arca's
registration rules with those of FINRA to promote uniform standards
across the securities industry.\21\ NYSE Arca states that it will also
help minimize the impact of the COVID-19 outbreak on NYSE Arca 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 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 Arca 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 Arca
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 Arca states that Prometric
has also had to close some reopened test centers due to incidents of
COVID-19 cases.
\24\ NYSE Arca 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 Arca 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 Arca 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
[[Page 65113]]
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-NYSEARCA-2020-87 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2020-87. 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 Arca. 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-NYSEARCA-2020-87 and should
be submitted on or before November 4, 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. 2020-22632 Filed 10-13-20; 8:45 am]
BILLING CODE 8011-01-P