Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Expiration Date of the Temporary Amendments to Rules 9261 and 9830, 51415-51418 [2021-19854]
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–92909; File No. SR–
NYSEARCA–2021–76]
1. Purpose
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Extending the Expiration
Date of the Temporary Amendments to
Rules 9261 and 9830
September 9, 2021.
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 August
27, 2021, 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 extending the
expiration date of the temporary
amendments to Rules 10.9261 and
10.9830 as set forth in SR–NYSEArca–
2020–85 from August 31, 2021, to
December 31, 2021, in conformity with
recent changes by the Financial Industry
Regulatory Authority, Inc. (‘‘FINRA’’).
The proposed rule change would not
make any changes to the text of NYSE
Arca Rules 10.9261 and 10.9830. 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.
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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 aspects of such
statements.
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
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The Exchange proposes extending the
expiration date of the temporary
amendments as set forth in SR–
NYSEArca–2020–85 4 to Rules 10.9261
(Evidence and Procedure in Hearing)
and 10.9830 (Hearing) from August 31,
2021, to December 31, 2021, to
harmonize with recent changes by
FINRA to extend the expiration date of
the temporary amendments to its Rules
9261 and 9830. SR–NYSEArca–2020–85
temporarily granted to the Chief or
Deputy Chief Hearing Officer the
authority to order that hearings be
conducted by video conference if
warranted by public health risks posed
by in-person hearings during the
ongoing COVID–19 pandemic. The
proposed rule change would not make
any changes to the text of Exchange
Rules 10.9261 and 10.9830.5
Background
In 2019, NYSE Arca adopted
disciplinary rules based on the text of
the Rule 8000 and Rule 9000 Series of
its affiliate NYSE American LLC
(‘‘NYSE American’’), with certain
changes. The NYSE American
disciplinary rules are, in turn,
substantially the same as the Rule 8000
Series and Rule 9000 Series of FINRA
and the New York Stock Exchange
LLC.6 The NYSE Arca disciplinary rules
were implemented on May 27, 2019.7
In adopting disciplinary rules
modeled on FINRA’s rules, NYSE Arca
adopted the hearing and evidentiary
processes set forth in Rule 10.9261 and
in Rule 10.9830 for hearings in matters
involving temporary and permanent
cease and desist orders under the Rule
10.9800 Series. As adopted, the text of
Rule 10.9261 and Rule 10.9830 are
substantially the same as the FINRA
rules with certain modifications.8
4 See Securities Exchange Act Release No. 90088
(October 5, 2020), 85 FR 64186 (October 9, 2020)
(SR–NYSEArca–2020–85) (‘‘SR–NYSEArca–2020–
85’’).
5 The Exchange may submit a separate rule filing
to extend the expiration date of the proposed
extension beyond December 31, 2021 if the
Exchange requires additional temporary relief from
the rule requirements identified in SR–NYSEArca–
2020–85. The amended NYSE Arca rules will revert
back to their original state at the conclusion of the
temporary relief period and any extension thereof.
6 See Securities Exchange Act Release No. 85639
(April 12, 2019), 84 FR 16346 (April 18, 2019) (SR–
NYSEArca–2019–15) (‘‘2019 Notice’’).
7 See NYSE Arca Equities RB–19–060 & NYSE
Arca Options RB–19–02 (April 26, 2019).
8 See 2019 Notice, 84 FR at 16365 & 16373–4.
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51415
In response to the COVID–19 global
health crisis and the corresponding
need to restrict in-person activities, on
August 31, 2020, FINRA filed with the
Commission a proposed rule change for
immediate effectiveness, SR–FINRA–
2020–027, which allowed FINRA’s
Office of Hearing Officers (‘‘OHO’’) to
conduct hearings, on a temporary basis,
by video conference, if warranted by the
current COVID–19-related public health
risks posed by an in-person hearing.
Among the rules FINRA amended were
Rules 9261 and 9830.9
Given that FINRA and OHO
administers disciplinary hearings on the
Exchange’s behalf, and that the public
health concerns addressed by FINRA’s
amendments apply equally to Exchange
disciplinary hearings, on September 23,
2020, the Exchange filed to temporarily
amend Rule 10.9261 and Rule 10.9830
to permit FINRA to conduct virtual
hearings on its behalf.10 In December
2020, FINRA filed a proposed rule
change, SR–FINRA–2020–042, to extend
the expiration date of the temporary
amendments in SR–FINRA–2020–027
from December 31, 2020, to April 30,
2021.11 On December 22, 2020, the
Exchange similarly filed to extend the
temporary amendments to Rule 10.9261
and Rule 10.9830 to April 30, 2021.12
On April 1, 2021, FINRA filed a
proposed rule change, SR–FINRA–
2021–006, to extend the expiration date
of the temporary rule amendments to,
among other rules, FINRA Rule 9261
and 9830 from April 30, 2021, to August
31, 2021.13 On April 20, 2021, the
Exchange filed to extend the temporary
amendments to Rule 10.9261 and Rule
10.9830 to August 31, 2021, after which
the temporary amendments will expire
absent another proposed rule change
filing by the Exchange.14
As outlined in detail below, while
there are signs of improvement, based
on FINRA’s assessment of current
COVID–19 conditions and the lack of a
clear timeframe for a sustained and
widespread abatement of COVID–19related health concerns and
9 See Securities Exchange Act Release No. 89737
(September 2, 2020), 85 FR 55712 (September 9,
2020) (SR–FINRA–2020–027) (‘‘SR–FINRA–2020–
027’’).
10 See note 3, supra.
11 See Securities Exchange Act Release No. 90619
(December 9, 2020), 85 FR 81250 (December 15,
2020) (SR–FINRA–2020–042).
12 See Securities Exchange Act Release No. 90820
(December 30, 2020), 86 FR 647 (January 6, 2021)
(SR– NYSEArca–2020–116).
13 See Securities Exchange Act Release No. 91495
(April 7, 2021), 86 FR 19306 (April 13, 2021) (SR–
FINRA–2021–006).
14 See Securities Exchange Act Release No. 91633
(April 22, 2021), 86 FR 22474 (April 28, 2021) (SR–
NYSEArca–2021–27).
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51416
Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
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corresponding restrictions, FINRA
determined that there is a continued
need for temporary relief for several
months beyond August 31, 2021. On
August 13, 2021, FINRA accordingly
filed to extend the expiration date of the
temporary rule amendments to, among
other rules, FINRA Rule 9261 and 9830
from August 31, 2021, to December 31,
2021.15
Proposed Rule Change
Consistent with FINRA’s recent
proposal, the Exchange proposes to
extend the expiration date of the
temporary rule amendments to NYSE
Arca Rules 10.9261 and 10.9830 as set
forth in SR–NYSEArca–2020–85 from
August 31, 2021, to December 31, 2021.
As set forth in SR–FINRA 2021–019,
while there are signs of improvement,
much uncertainty remains for the
coming months. The emergence of the
Delta variant, dissimilar vaccination
rates throughout the United States, and
the uptick in transmissions in many
locations indicate that COVID–19
remains an active and real public health
concern. Based on FINRA’s assessment
of current COVID–19 conditions and the
lack of a clear timeframe for a sustained
and widespread abatement of COVID–
19-related health concerns and
corresponding restrictions, FINRA has
determined that there is a continued
need for this temporary relief for several
months beyond August 31, 2021.16
FINRA accordingly proposed to extend
the expiration date of the temporary rule
amendments from August 31, 2021, to
December 31, 2021.
The Exchange proposes to similarly
extend the expiration date of the
temporary rule amendments to NYSE
Arca Rules 10.9261 and 10.9830 as set
forth in SR–NYSEArca–2020–85 from
August 31, 2021, to December 31, 2021.
The Exchange agrees with FINRA that
much uncertainty remains for the
coming months and that, based on the
lack of a clear timeframe for a sustained
and widespread abatement of COVID–
19-related health concerns and
corresponding restrictions as set forth in
SR–FINRA–2021–019, there is a
continued need for temporary relief for
several months beyond August 31, 2021.
The proposed change would permit
OHO to continue to assess, based on
critical COVID–19 data and criteria and
the guidance of health and security
consultants, whether an in-person
hearing would compromise the health
and safety of the hearing participants
15 See
Securities Exchange Act Release No. 92685
(August 17, 2021), 86 FR 47169 (August 23, 2021)
(SR–FINRA–2021–019) (‘‘SR–FINRA–2021–019’’).
16 See id.
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such that the hearing should proceed by
video conference. As noted in SR–
FINRA–2021–019, in deciding whether
to schedule a hearing by video
conference, OHO may consider a variety
of other factors in addition to COVID–
19 trends. In SR–FINRA–2020–027,
FINRA provided a non-exhaustive list of
other factors OHO may take into
consideration, including a hearing
participant’s individual health concerns
and access to the connectivity and
technology necessary to participate in a
video conference hearing.17 The
Exchange believes that this is a
reasonable procedure to continue to
follow for hearings under Rules 9261
and 9830 chaired by a FINRA employee.
As noted below, the Exchange has
filed the proposed rule change for
immediate effectiveness and has
requested that the SEC waive the
requirement that the proposed rule
change not become operative for 30 days
after the date of the filing, so the
Exchange can implement the proposed
rule change immediately.
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) of the
Act,18 in general, and furthers the
objectives of Section 6(b)(5),19 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. Additionally, the
Exchange believes the proposed rule
change is designed to provide a fair
procedure for the disciplining of
members and persons associated with
members, consistent with Sections
6(b)(7) and 6(d) of the Act.20
The Exchange believes that the
proposed rule change supports the
objectives of the Act by providing
greater harmonization between
Exchange rules and FINRA rules of
similar purpose, resulting in less
burdensome and more efficient
regulatory compliance. As such, the
proposed rule change will foster
cooperation and coordination with
persons engaged in facilitating
transactions in securities and will
17 See SR–FINRA–2020–027, 85 FR at 55715, n.
28; SR–FINRA–2021–019, 86 FR at 47170, n. 13.
18 15 U.S.C. 78f(b).
19 15 U.S.C. 78f(b)(5).
20 15 U.S.C. 78f(b)(7) & 78f(d).
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remove impediments to and perfect the
mechanism of a free and open market
and a national market system.
The proposed rule change, which
extends the expiration date of the
temporary amendments to Exchange
rules consistent with FINRA’s extension
to its Rules 9261 and 9830 for four
months as set forth in SR–FINRA–2021–
019, will permit the Exchange to
continue to effectively conduct hearings
during the COVID–19 pandemic. As
noted above and in SR–FINRA–2021–
019, given the current and frequently
changing COVID–19 conditions and the
uncertainty around when those
conditions will see meaningful,
widespread and sustained
improvement, without this relief
allowing OHO to proceed by video
conference, some or all hearings may
have to be postponed. The ability to
conduct hearings by video conference
will permit the adjudicatory functions
of the Exchange’s disciplinary rules to
continue unabated, thereby avoiding
protracted delays. The Exchange
believes that this is especially important
in matters where temporary and
permanent cease and desist orders are
sought because the proposed rule
change would enable those hearings to
continue to proceed without delay,
thereby enabling the Exchange to
continue to take immediate action to
stop significant, ongoing customer
harm, to the benefit of the investing
public.
As set forth in detail in the SR–
NYSEArca–2020–85, the temporary
relief to permit hearings to be conducted
via video conference maintains fair
process and will continue to provide
fair process consistent with Sections
6(b)(7) and 6(d) of the Act 21 while
striking an appropriate balance between
providing fair process and enabling the
Exchange to fulfill its statutory
obligations to protect investors and
maintain fair and orderly markets while
avoiding the COVID–19-related public
health risks for hearing participants.
The Exchange notes that this proposal,
like, like SR–NYSEArca–2020–85,
provides only temporary relief. As
proposed, the changes would be in
place through August 31, 2021. As
noted in SR–NYSEArca–2020–85 and
above, the amended rules will revert
back to their original state at the
conclusion of the temporary relief
period and, if applicable, any extension
thereof.
Accordingly, the proposed rule
change extending this temporary relief
is in the public interest and consistent
with the Act’s purpose.
21 15
E:\FR\FM\15SEN1.SGM
U.S.C. 78f(b)(7) & 78f(d).
15SEN1
Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed temporary 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 not
intended to address competitive issues
but is rather intended solely to provide
continued temporary relief given the
impacts of the COVID–19 pandemic and
the related health and safety risks of
conducting in-person activities. The
Exchange believes that the proposed
rule change will prevent unnecessary
impediments to critical adjudicatory
processes and its ability to fulfill its
statutory obligations to protect investors
and maintain fair and orderly markets
that would otherwise result if the
temporary amendments were to expire
on August 31, 2021.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule
change does not: (i) Significantly affect
the protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A)(iii) of the Act 22 and
subparagraph (f)(6) of Rule 19b–4
thereunder.23
A proposed rule change filed under
Rule 19b–4(f)(6) 24 normally does not
become operative prior to 30 days after
the date of the filing. However, pursuant
to Rule 19b–4(f)(6)(iii),25 the
Commission may designate a shorter
time if such action is consistent with the
protection of investors and the public
interest. The Exchange has asked the
Commission to waive the 30-day
operative delay so that the proposal may
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22 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires a self-regulatory organization to give
the Commission written notice of its intent to file
the proposed rule change at least five business days
prior to the date of filing of the proposed rule
change, or such shorter time as designated by the
Commission. The Exchange has satisfied this
requirement.
24 17 CFR 240.19b–4(f)(6).
25 17 CFR 240.19b–4(f)(6)(iii).
23 17
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become operative immediately upon
filing. The Exchange has indicated that
the proposed rule change to extend the
expiration date will continue to prevent
unnecessary impediments to its
operations, including its critical
adjudicatory processes, and its ability to
fulfill its statutory obligations to protect
investors and maintain fair and orderly
markets that would otherwise result if
the temporary amendments were to
expire on August 31, 2021.26
Importantly, extending the relief
provided in SR–NYSEArca–2020–85
immediately upon filing and without a
30-day operative delay will allow the
Exchange to continue critical
adjudicatory and review processes in a
reasonable and fair manner and meet its
critical investor protection goals, while
also following best practices with
respect to the health and safety of
hearing participants.27 The Commission
also notes that this proposal extends
without change the temporary relief
previously provided by SR–NYSEArca–
2020–85.28 As proposed, the changes
would be in place through December 31,
2021 and the amended rules will revert
back to their original state at the
conclusion of the temporary relief
period and, if applicable, any extension
thereof.29 For these reasons, the
Commission believes that waiver of the
30-day operative delay for this proposal
is consistent with the protection of
investors and the public interest.
Accordingly, the Commission hereby
waives the 30-day operative delay and
designates the proposal operative upon
filing.30
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.
26 See
supra Item II.
FINRA Filing, 86 FR at 47171 (noting the
same in granting FINRA’s request to waive the 30day operative delay so that SR–FINRA–2021–019
would become operative immediately upon filing).
28 See supra note 4.
29 See supra note 5. As noted above, the Exchange
states that if it requires temporary relief from the
rule requirements identified in this proposal
beyond December 31, 2021, it may submit a
separate rule filing to extend the effectiveness of the
temporary relief under these rules.
30 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).
27 See
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51417
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–
NYSEArca–2021–76 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–2021–76. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEArca–2021–76 and should be
submitted on or before October 6, 2021.
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.31
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–19854 Filed 9–14–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–92910; File No. SR–
NYSEAMER–2021–37]
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Extending the Expiration
Date of the Temporary Amendments to
Rules 9261 and 9830
September 9, 2021.
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 August
27, 2021, 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
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The Exchange proposes extending the
expiration date of the temporary
amendments to Rules 9261 and 9830 as
set forth in SR–NYSEAMER–2020–69
from August 31, 2021, to December 31,
2021, in conformity with recent changes
by the Financial Industry Regulatory
Authority, Inc. (‘‘FINRA’’). The
proposed rule change would not make
any changes to the text of NYSE
American Rules 9261 and 9830. 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
31 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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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 aspects 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 extending the
expiration date of the temporary
amendments as set forth in SR–
NYSEAMER–2020–69 4 to Rules 9261
(Evidence and Procedure in Hearing)
and 9830 (Hearing) from August 31,
2021, to December 31, 2021 to
harmonize with recent changes by
FINRA to extend the expiration date of
the temporary amendments to its Rules
9261 and 9830. SR–NYSEAMER–2020–
69 temporarily granted to the Chief or
Deputy Chief Hearing Officer the
authority to order that hearings be
conducted by video conference if
warranted by public health risks posed
by in-person hearings during the
ongoing COVID–19 pandemic. The
proposed rule change would not make
any changes to the text of Exchange
Rules 9261 and 9830.5
Background
In 2016, NYSE American (then known
as NYSE MKT LLC) adopted
disciplinary rules that are, with certain
exceptions, substantially the same as the
Rule 8000 Series and Rule 9000 Series
of FINRA and its affiliate the New York
Stock Exchange LLC (‘‘NYSE’’), and
which set forth rules for conducting
investigations and enforcement actions.6
The NYSE American disciplinary rules
were implemented on April 15, 2016.7
In adopting disciplinary rules
modeled on FINRA’s rules, NYSE
American adopted the hearing and
4 See Securities Exchange Act Release No. 90085
(October 2, 2020), 85 FR 63603 (October 8, 2020)
(SR–NYSEAMER–2020–69) (‘‘SR–NYSEAMER–
2020–69’’).
5 The Exchange may submit a separate rule filing
to extend the expiration date of the proposed
extension beyond December 31, 2021 if the
Exchange requires additional temporary relief from
the rule requirements identified in NYSEAMER–
SR–2020–69. The amended NYSE American rules
will revert back to their original state at the
conclusion of the temporary relief period and any
extension thereof.
6 See Securities Exchange Act Release No. 77241
(February 26, 2016), 81 FR 11311 (March 3, 2016)
(SR–NYSEMKT–2016–30) (‘‘2016 Notice’’).
7 See NYSE MKT Information Memorandum 16–
02 (March 14, 2016).
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evidentiary processes set forth in Rule
9261 and in Rule 9830 for hearings in
matters involving temporary and
permanent cease and desist orders
under the Rule 9800 Series. As adopted,
the text of Rule 9261 and Rule 9830 are
substantially the same as the FINRA
rules with certain modifications.8
In response to the COVID–19 global
health crisis and the corresponding
need to restrict in-person activities, on
August 31, 2020, FINRA filed with the
Commission a proposed rule change for
immediate effectiveness, SR–FINRA–
2020–027, which allowed FINRA’s
Office of Hearing Officers (‘‘OHO’’) to
conduct hearings, on a temporary basis,
by video conference, if warranted by the
current COVID–19-related public health
risks posed by an in-person hearing.
Among the rules FINRA amended were
Rules 9261 and 9830.9
Given that FINRA and OHO
administers disciplinary hearings on the
Exchange’s behalf, and that the public
health concerns addressed by FINRA’s
amendments apply equally to Exchange
disciplinary hearings, on September 15,
2020, the Exchange filed to temporarily
amend Rule 9261 and Rule 9830 to
permit FINRA to conduct virtual
hearings on its behalf.10 In December
2020, FINRA filed a proposed rule
change, SR–FINRA–2020–042, to extend
the expiration date of the temporary
amendments in SR–FINRA–2020–027
from December 31, 2020, to April 30,
2021.11 On December 22, 2020, the
Exchange similarly filed to extend the
temporary amendments to Rule 9261
and Rule 9830 to April 30, 2021.12 On
April 1, 2021, FINRA filed a proposed
rule change, SR–FINRA–2021–006, to
extend the expiration date of the
temporary rule amendments to, among
other rules, FINRA Rule 9261 and 9830
from April 30, 2021, to August 31,
2021.13 On April 20, 2021, the Exchange
filed to extend the temporary
amendments to Rule 9261 and Rule
9830 to August 31, 2021, after which the
temporary amendments will expire
8 See
2016 Notice, 18 FR at 11327 & 11332.
Securities Exchange Act Release No. 89737
(September 2, 2020), 85 FR 55712 (September 9,
2020) (SR–FINRA–2020–027) (‘‘SR–FINRA–2020–
027’’).
10 See note 4, supra.
11 See Securities Exchange Act Release No. 90619
(December 9, 2020), 85 FR 81250 (December 15,
2020) (SR–FINRA–2020–042).
12 See Securities Exchange Act Release No. 90823
(December 30, 2020), 86 FR 650 (January 6, 2021)
(SR–NYSEAMER–2020–88).
13 See Securities Exchange Act Release No. 91495
(April 7, 2021), 86 FR 19306 (April 13, 2021) (SR–
FINRA–2021–006).
9 See
E:\FR\FM\15SEN1.SGM
15SEN1
]]>Agencies
[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Notices]
[Pages 51415-51418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19854]
[[Page 51415]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-92909; File No. SR-NYSEARCA-2021-76]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Extending the
Expiration Date of the Temporary Amendments to Rules 9261 and 9830
September 9, 2021.
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 August 27, 2021, 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 extending the expiration date of the
temporary amendments to Rules 10.9261 and 10.9830 as set forth in SR-
NYSEArca-2020-85 from August 31, 2021, to December 31, 2021, in
conformity with recent changes by the Financial Industry Regulatory
Authority, Inc. (``FINRA''). The proposed rule change would not make
any changes to the text of NYSE Arca Rules 10.9261 and 10.9830. 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 aspects 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 extending the expiration date of the
temporary amendments as set forth in SR-NYSEArca-2020-85 \4\ to Rules
10.9261 (Evidence and Procedure in Hearing) and 10.9830 (Hearing) from
August 31, 2021, to December 31, 2021, to harmonize with recent changes
by FINRA to extend the expiration date of the temporary amendments to
its Rules 9261 and 9830. SR-NYSEArca-2020-85 temporarily granted to the
Chief or Deputy Chief Hearing Officer the authority to order that
hearings be conducted by video conference if warranted by public health
risks posed by in-person hearings during the ongoing COVID-19 pandemic.
The proposed rule change would not make any changes to the text of
Exchange Rules 10.9261 and 10.9830.\5\
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\4\ See Securities Exchange Act Release No. 90088 (October 5,
2020), 85 FR 64186 (October 9, 2020) (SR-NYSEArca-2020-85) (``SR-
NYSEArca-2020-85'').
\5\ The Exchange may submit a separate rule filing to extend the
expiration date of the proposed extension beyond December 31, 2021
if the Exchange requires additional temporary relief from the rule
requirements identified in SR-NYSEArca-2020-85. The amended NYSE
Arca rules will revert back to their original state at the
conclusion of the temporary relief period and any extension thereof.
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Background
In 2019, NYSE Arca adopted disciplinary rules based on the text of
the Rule 8000 and Rule 9000 Series of its affiliate NYSE American LLC
(``NYSE American''), with certain changes. The NYSE American
disciplinary rules are, in turn, substantially the same as the Rule
8000 Series and Rule 9000 Series of FINRA and the New York Stock
Exchange LLC.\6\ The NYSE Arca disciplinary rules were implemented on
May 27, 2019.\7\
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\6\ See Securities Exchange Act Release No. 85639 (April 12,
2019), 84 FR 16346 (April 18, 2019) (SR-NYSEArca-2019-15) (``2019
Notice'').
\7\ See NYSE Arca Equities RB-19-060 & NYSE Arca Options RB-19-
02 (April 26, 2019).
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In adopting disciplinary rules modeled on FINRA's rules, NYSE Arca
adopted the hearing and evidentiary processes set forth in Rule 10.9261
and in Rule 10.9830 for hearings in matters involving temporary and
permanent cease and desist orders under the Rule 10.9800 Series. As
adopted, the text of Rule 10.9261 and Rule 10.9830 are substantially
the same as the FINRA rules with certain modifications.\8\
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\8\ See 2019 Notice, 84 FR at 16365 & 16373-4.
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In response to the COVID-19 global health crisis and the
corresponding need to restrict in-person activities, on August 31,
2020, FINRA filed with the Commission a proposed rule change for
immediate effectiveness, SR-FINRA-2020-027, which allowed FINRA's
Office of Hearing Officers (``OHO'') to conduct hearings, on a
temporary basis, by video conference, if warranted by the current
COVID-19-related public health risks posed by an in-person hearing.
Among the rules FINRA amended were Rules 9261 and 9830.\9\
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\9\ See Securities Exchange Act Release No. 89737 (September 2,
2020), 85 FR 55712 (September 9, 2020) (SR-FINRA-2020-027) (``SR-
FINRA-2020-027'').
---------------------------------------------------------------------------
Given that FINRA and OHO administers disciplinary hearings on the
Exchange's behalf, and that the public health concerns addressed by
FINRA's amendments apply equally to Exchange disciplinary hearings, on
September 23, 2020, the Exchange filed to temporarily amend Rule
10.9261 and Rule 10.9830 to permit FINRA to conduct virtual hearings on
its behalf.\10\ In December 2020, FINRA filed a proposed rule change,
SR-FINRA-2020-042, to extend the expiration date of the temporary
amendments in SR-FINRA-2020-027 from December 31, 2020, to April 30,
2021.\11\ On December 22, 2020, the Exchange similarly filed to extend
the temporary amendments to Rule 10.9261 and Rule 10.9830 to April 30,
2021.\12\ On April 1, 2021, FINRA filed a proposed rule change, SR-
FINRA-2021-006, to extend the expiration date of the temporary rule
amendments to, among other rules, FINRA Rule 9261 and 9830 from April
30, 2021, to August 31, 2021.\13\ On April 20, 2021, the Exchange filed
to extend the temporary amendments to Rule 10.9261 and Rule 10.9830 to
August 31, 2021, after which the temporary amendments will expire
absent another proposed rule change filing by the Exchange.\14\
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\10\ See note 3, supra.
\11\ See Securities Exchange Act Release No. 90619 (December 9,
2020), 85 FR 81250 (December 15, 2020) (SR-FINRA-2020-042).
\12\ See Securities Exchange Act Release No. 90820 (December 30,
2020), 86 FR 647 (January 6, 2021) (SR- NYSEArca-2020-116).
\13\ See Securities Exchange Act Release No. 91495 (April 7,
2021), 86 FR 19306 (April 13, 2021) (SR-FINRA-2021-006).
\14\ See Securities Exchange Act Release No. 91633 (April 22,
2021), 86 FR 22474 (April 28, 2021) (SR-NYSEArca-2021-27).
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As outlined in detail below, while there are signs of improvement,
based on FINRA's assessment of current COVID-19 conditions and the lack
of a clear timeframe for a sustained and widespread abatement of COVID-
19-related health concerns and
[[Page 51416]]
corresponding restrictions, FINRA determined that there is a continued
need for temporary relief for several months beyond August 31, 2021. On
August 13, 2021, FINRA accordingly filed to extend the expiration date
of the temporary rule amendments to, among other rules, FINRA Rule 9261
and 9830 from August 31, 2021, to December 31, 2021.\15\
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\15\ See Securities Exchange Act Release No. 92685 (August 17,
2021), 86 FR 47169 (August 23, 2021) (SR-FINRA-2021-019) (``SR-
FINRA-2021-019'').
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Proposed Rule Change
Consistent with FINRA's recent proposal, the Exchange proposes to
extend the expiration date of the temporary rule amendments to NYSE
Arca Rules 10.9261 and 10.9830 as set forth in SR-NYSEArca-2020-85 from
August 31, 2021, to December 31, 2021.
As set forth in SR-FINRA 2021-019, while there are signs of
improvement, much uncertainty remains for the coming months. The
emergence of the Delta variant, dissimilar vaccination rates throughout
the United States, and the uptick in transmissions in many locations
indicate that COVID-19 remains an active and real public health
concern. Based on FINRA's assessment of current COVID-19 conditions and
the lack of a clear timeframe for a sustained and widespread abatement
of COVID-19-related health concerns and corresponding restrictions,
FINRA has determined that there is a continued need for this temporary
relief for several months beyond August 31, 2021.\16\ FINRA accordingly
proposed to extend the expiration date of the temporary rule amendments
from August 31, 2021, to December 31, 2021.
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\16\ See id.
---------------------------------------------------------------------------
The Exchange proposes to similarly extend the expiration date of
the temporary rule amendments to NYSE Arca Rules 10.9261 and 10.9830 as
set forth in SR-NYSEArca-2020-85 from August 31, 2021, to December 31,
2021. The Exchange agrees with FINRA that much uncertainty remains for
the coming months and that, based on the lack of a clear timeframe for
a sustained and widespread abatement of COVID-19-related health
concerns and corresponding restrictions as set forth in SR-FINRA-2021-
019, there is a continued need for temporary relief for several months
beyond August 31, 2021. The proposed change would permit OHO to
continue to assess, based on critical COVID-19 data and criteria and
the guidance of health and security consultants, whether an in-person
hearing would compromise the health and safety of the hearing
participants such that the hearing should proceed by video conference.
As noted in SR-FINRA-2021-019, in deciding whether to schedule a
hearing by video conference, OHO may consider a variety of other
factors in addition to COVID-19 trends. In SR-FINRA-2020-027, FINRA
provided a non-exhaustive list of other factors OHO may take into
consideration, including a hearing participant's individual health
concerns and access to the connectivity and technology necessary to
participate in a video conference hearing.\17\ The Exchange believes
that this is a reasonable procedure to continue to follow for hearings
under Rules 9261 and 9830 chaired by a FINRA employee.
---------------------------------------------------------------------------
\17\ See SR-FINRA-2020-027, 85 FR at 55715, n. 28; SR-FINRA-
2021-019, 86 FR at 47170, n. 13.
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As noted below, the Exchange has filed the proposed rule change for
immediate effectiveness and has requested that the SEC waive the
requirement that the proposed rule change not become operative for 30
days after the date of the filing, so the Exchange can implement the
proposed rule change immediately.
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) of the
Act,\18\ in general, and furthers the objectives of Section
6(b)(5),\19\ 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. Additionally, the Exchange believes
the proposed rule change is designed to provide a fair procedure for
the disciplining of members and persons associated with members,
consistent with Sections 6(b)(7) and 6(d) of the Act.\20\
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\18\ 15 U.S.C. 78f(b).
\19\ 15 U.S.C. 78f(b)(5).
\20\ 15 U.S.C. 78f(b)(7) & 78f(d).
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The Exchange believes that the proposed rule change supports the
objectives of the Act by providing greater harmonization between
Exchange rules and FINRA rules of similar purpose, resulting in less
burdensome and more efficient regulatory compliance. As such, the
proposed rule change will foster cooperation and coordination with
persons engaged in facilitating transactions in securities and will
remove impediments to and perfect the mechanism of a free and open
market and a national market system.
The proposed rule change, which extends the expiration date of the
temporary amendments to Exchange rules consistent with FINRA's
extension to its Rules 9261 and 9830 for four months as set forth in
SR-FINRA-2021-019, will permit the Exchange to continue to effectively
conduct hearings during the COVID-19 pandemic. As noted above and in
SR-FINRA-2021-019, given the current and frequently changing COVID-19
conditions and the uncertainty around when those conditions will see
meaningful, widespread and sustained improvement, without this relief
allowing OHO to proceed by video conference, some or all hearings may
have to be postponed. The ability to conduct hearings by video
conference will permit the adjudicatory functions of the Exchange's
disciplinary rules to continue unabated, thereby avoiding protracted
delays. The Exchange believes that this is especially important in
matters where temporary and permanent cease and desist orders are
sought because the proposed rule change would enable those hearings to
continue to proceed without delay, thereby enabling the Exchange to
continue to take immediate action to stop significant, ongoing customer
harm, to the benefit of the investing public.
As set forth in detail in the SR-NYSEArca-2020-85, the temporary
relief to permit hearings to be conducted via video conference
maintains fair process and will continue to provide fair process
consistent with Sections 6(b)(7) and 6(d) of the Act \21\ while
striking an appropriate balance between providing fair process and
enabling the Exchange to fulfill its statutory obligations to protect
investors and maintain fair and orderly markets while avoiding the
COVID-19-related public health risks for hearing participants. The
Exchange notes that this proposal, like, like SR-NYSEArca-2020-85,
provides only temporary relief. As proposed, the changes would be in
place through August 31, 2021. As noted in SR-NYSEArca-2020-85 and
above, the amended rules will revert back to their original state at
the conclusion of the temporary relief period and, if applicable, any
extension thereof.
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\21\ 15 U.S.C. 78f(b)(7) & 78f(d).
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Accordingly, the proposed rule change extending this temporary
relief is in the public interest and consistent with the Act's purpose.
[[Page 51417]]
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed temporary 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 not intended to address competitive issues but is rather
intended solely to provide continued temporary relief given the impacts
of the COVID-19 pandemic and the related health and safety risks of
conducting in-person activities. The Exchange believes that the
proposed rule change will prevent unnecessary impediments to critical
adjudicatory processes and its ability to fulfill its statutory
obligations to protect investors and maintain fair and orderly markets
that would otherwise result if the temporary amendments were to expire
on August 31, 2021.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \22\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\23\
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\22\ 15 U.S.C. 78s(b)(3)(A)(iii).
\23\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) \24\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\25\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Exchange has
indicated that the proposed rule change to extend the expiration date
will continue to prevent unnecessary impediments to its operations,
including its critical adjudicatory processes, and its ability to
fulfill its statutory obligations to protect investors and maintain
fair and orderly markets that would otherwise result if the temporary
amendments were to expire on August 31, 2021.\26\ Importantly,
extending the relief provided in SR-NYSEArca-2020-85 immediately upon
filing and without a 30-day operative delay will allow the Exchange to
continue critical adjudicatory and review processes in a reasonable and
fair manner and meet its critical investor protection goals, while also
following best practices with respect to the health and safety of
hearing participants.\27\ The Commission also notes that this proposal
extends without change the temporary relief previously provided by SR-
NYSEArca-2020-85.\28\ As proposed, the changes would be in place
through December 31, 2021 and the amended rules will revert back to
their original state at the conclusion of the temporary relief period
and, if applicable, any extension thereof.\29\ For these reasons, the
Commission believes that waiver of the 30-day operative delay for this
proposal is consistent with the protection of investors and the public
interest. Accordingly, the Commission hereby waives the 30-day
operative delay and designates the proposal operative upon filing.\30\
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\24\ 17 CFR 240.19b-4(f)(6).
\25\ 17 CFR 240.19b-4(f)(6)(iii).
\26\ See supra Item II.
\27\ See FINRA Filing, 86 FR at 47171 (noting the same in
granting FINRA's request to waive the 30-day operative delay so that
SR-FINRA-2021-019 would become operative immediately upon filing).
\28\ See supra note 4.
\29\ See supra note 5. As noted above, the Exchange states that
if it requires temporary relief from the rule requirements
identified in this proposal beyond December 31, 2021, it may submit
a separate rule filing to extend the effectiveness of the temporary
relief under these rules.
\30\ 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-2021-76 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-2021-76. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2021-76 and should
be submitted on or before October 6, 2021.
[[Page 51418]]
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
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\31\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-19854 Filed 9-14-21; 8:45 am]
BILLING CODE 8011-01-P
