Self-Regulatory Organizations; NYSE National Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rules 10.9132, 10.9133, 10.9135, 10.9146, 10.9522, 10.9524, 10.9559 and 10.9630, 4246-4249 [2023-01269]
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Federal Register / Vol. 88, No. 15 / Tuesday, January 24, 2023 / Notices
A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–96693; File No. SR–
NYSENAT–2023–03]
1. Purpose
Self-Regulatory Organizations; NYSE
National Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Amend Rules 10.9132,
10.9133, 10.9135, 10.9146, 10.9522,
10.9524, 10.9559 and 10.9630
January 18, 2023.
Pursuant to section 19(b)(1) 1 of the
Securities Exchange Act of 1934
(‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that on January 4,
2023, NYSE National, Inc. (‘‘NYSE
National’’ 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 to amend
Rules 10.9132, 10.9133, 10.9135,
10.9146, 10.9522, 10.9524, 10.9559 and
10.9630 to permit, and in some
instances require, electronic service and
filing of documents in disciplinary and
other proceedings and appeals, in
conformity with recent changes by the
Financial Industry Regulatory
Authority, Inc. (‘‘FINRA’’). 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 parts 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 to amend
Rules 10.9132, 10.9133, 10.9135,
10.9146, 10.9522, 10.9524, 10.9559 and
10.9630 to permit, and in some
instances require, electronic service and
filing of documents in disciplinary and
other proceedings, in conformity with
recent changes by FINRA.
In 2020, following the outbreak of the
Coronavirus Disease (‘‘COVID–19’’),
FINRA temporarily amended certain of
its rules, including related to the
method of service and filing in
disciplinary proceedings before the
Office of Hearing Officers (OHO) and
appeals before the National
Adjudicatory Council (NAC), among
other types of administrative
proceedings (the ‘‘temporary
amendments’’).4 The temporary
amendments allowed, and in some
instances required, FINRA (in its
capacity as an Adjudicator per FINRA
Rule 9120) to serve certain documents
on parties by electronic mail (‘‘email’’)
and required parties to file or serve
documents by email, unless the parties
agreed to an alternative method of
service.5 Earlier this year, FINRA made
permanent the temporary amendments
to its rules regarding electronic service
and filing permanent, with some
modifications.6
In support of its filing, FINRA noted
that advances in technology and its
availability made filing and service
permitted by the temporary
4 See, e.g., Securities Exchange Act Release No.
88917 (May 20, 2020), 85 FR 31832 (May 27, 2020)
(SR–FINRA–2020–015) (Notice and immediate
effectiveness of filing to temporarily amend certain
timing, method of service and other procedural
requirements in FINRA Rules during the outbreak
of COVID–19). FINRA extended the temporary
amendments several times before filing to make
certain of the aforementioned amendments
permanent. The temporary amendments included
rule changes to permit the conduct of virtual
hearings (i.e., Rules 9261 and 9830), which rule
changes are not being included in this proposal.
Rather, the Exchange is solely copying a subset of
rules covered by the temporary amendments as
discussed herein.
5 See id.
6 See Securities Exchange Act Release Nos. 95147
(June 23, 2022), 87 FR 38803 (June 29, 2022) (order
approving change to certain FINRA rules to permit,
and in some instances require, electronic service
and filing of documents in disciplinary and other
proceedings and appeals) (‘‘Approval Order of
FINRA Rules’’); 94654 (April 8, 2022), 87 FR 22264
(April 14, 2022) (SR–FINRA–2022–009) (‘‘FINRA
Notice’’). The Approval Order of FINRA Rules
related to FINRA Rules 1012, 1015, 6490, 9132,
9133, 9135, 9146, 9321, 9341, 9349, 9351, 9522,
9524, 9559 and 9630 (collectively, ‘‘the approved
FINRA Rules’’).
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amendments more efficient than under
FINRA’s ‘‘original’’ (non-amended)
rules.7 Moreover, FINRA determined
that electronic service and filing is
beneficial for parties, panelists and
FINRA staff.8 FINRA also noted that the
Commission likewise amended its rules
in November 2020 to require electronic
filing and service of documents in its
administrative proceedings.9 For these
reasons, FINRA determined that making
permanent the temporary amendments
would similarly improve and modernize
FINRA’s operations.10
To likewise improve and modernize
Exchange rules, the Exchange proposes
to modify certain of its disciplinary
rules to allow for electronic service and
filing of documents in disciplinary and
other proceedings in conformity with
the approved FINRA Rules.11
Background
In 2018, NYSE National adopted
disciplinary rules that are, with certain
exceptions, substantially the same as the
disciplinary rules of its affiliate NYSE
American LLC, which are in turn
substantially similar to the FINRA Rule
8000 Series and Rule 9000 Series, and
which set forth rules for conducting
investigations and enforcement
actions.12 The Exchange notes that
FINRA and OHO administers
disciplinary hearings on the Exchange’s
behalf.
In adopting disciplinary rules
modeled on FINRA’s rules, the
Exchange adopted the filing, service and
other procedural requirements as
contained the FINRA Rule 9100, 9500,
and 9600 Series. As adopted, the text of
Exchange Rules 10.9132, 10.9133,
10.9135, 10.9146, 10.9522, 10.9524,
10.9559 and 10.9630 are based on, and
are substantially the same as, their
counterpart FINRA rules.13
7 See
FINRA Notice, 87 FR at 22267.
FINRA Notice, 87 FR at 22267.
9 See Amendments to the Commission’s Rules of
Practice, Securities Exchange Act Release No. 90442
(November 17, 2020), 85 FR 86464 (File No. S7–18–
15) (December 30, 2020) (codified at 17 CFR 201
(2020)).
10 See FINRA Notice, 87 FR at 22266–67.
11 Consistent with the Approval Order of FINRA
Rules, the Exchange is not proposing to permit
electronic service of an initial complaint on a
respondent due to heightened fair process concerns.
As is the case today, the only permissible methods
of serving the initial complaint are by hand, mail
or courier. See Rule 10.9131(b) (requiring that
service be pursuant to Rule 10.9134(a)).
12 See Securities Exchange Act Release No. 83289
(May 17, 2018), 83 FR 23968, 23976 (May 23, 2018)
(SR–NYSENAT–2018–02).
13 The Exchange notes that this proposal adopts
a subset of the approved FINRA Rules, which
subset are applicable to the Exchange rules. As
noted herein, this proposal does not extend to the
temporary amendments related to the conduct of
virtual hearings (i.e., Rules 10.9261 and 10.9830).
8 See
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Proposed Rule Change
Consistent with FINRA’s recent
proposal, the Exchange proposes to
amend certain of its disciplinary rules
related to filing, service and other
procedural requirements and appeals.
The proposed rule change includes
provisions to allow, and in some
instances require, FINRA (in its capacity
as an Adjudicator per Rule 10.9120) to
serve certain documents on parties by
email and require parties to file or serve
documents by email, unless another
method of service is ordered by the
Adjudicator.14 In addition, to support
the transition to email service and filing,
the Exchange proposes to require parties
in OHO proceedings to file and serve all
parties with their current email address
and contact information at the time of
their first appearance, and to file and
serve any change in email address or
contact information during the course of
the proceeding.
The proposed rule change would
permit service of documents other than
the initial complaint by email among
various other methods of service, such
as personal service, mail and courier,
and to provide that service by email is
deemed complete upon sending. The
Exchange intends to elect email service
whenever possible. If the Exchange has
knowledge that the address used for
service is not current or not functional
(i.e., the Exchange receives a bounce
back or other message indicating that
there was a failure to deliver the email),
the Exchange will use other permissible
methods of service until it can verify the
party’s email address.15 The Exchange
notes that, in most cases, the Exchange
and the relevant party, or their counsel,
will have already engaged in
communications prior to the service of
documents or other information.
Accordingly, in most cases, the
Exchange will already have information
regarding the relevant party, or their
counsel’s, preferred method of service.
The Rule 10.9000 Series, among other
things, sets forth the procedure for
disciplinary proceedings concerning a
member, associated person or formerly
associated person. The Rule 10.9100
Series is of general applicability to all
proceedings set forth in the Rule
10.9000 Series, unless a rule specifically
14 To the extent that a party lacks the ability to
use or access technology needed to file, serve or
accept service by email, FINRA, as adjudicator, may
order an alternative method of service upon a
showing of good cause. See FINRA Notice, 87 FR
at 22265.
15 As indicated in the proposed rule text, the
Exchange will consider service by email complete
upon sending of the relevant document or other
information. This is consistent with service by mail
under the current rules.
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provides otherwise. Rules 10.9132(b),16
10.9133(b),17 and 10.9146(l) 18 provide
that the documents and other
information governed by those rules be
served pursuant to Rule 10.9134, which
permits service on the parties using the
following methods: (1) personal service,
(2) mail, or (3) courier. Rule 10.9134
does not permit service by email. The
proposed rule change would amend
Rule 10.9132(b) to allow service of the
relevant documents or information by
email, and Rules 10.9133(b) and
10.9146(l) to require parties to serve
documents by email, unless an
alternative method of service is ordered
by the Adjudicator.
In addition, to support the transition
to email service and filing, the Exchange
proposes to amend Rule 10.9135 to add
paragraph (d), which would require
parties in OHO proceedings to file and
serve the parties with their current
email address and contact information
at the time of their first appearance, and
to file and serve any change in email
address or contact information during
the course of the proceeding.19 The
Exchange believes this proposed rule
change will help ensure that documents
are successfully sent from and received
at a valid email address. It will also
ensure that all participants, including
the Exchange, applicants, respondents
and any other parties, have accurate
contact information for all parties.
The Rule 10.9520 Series sets forth the
procedures for eligibility proceedings
and review of those proceedings by the
Exchange Board. Because the applicable
rules in this series do not allow for
email as a method of service, the
Exchange proposes to modify Rule
10.9522(a)(4) 20 and to add new
paragraph (d) to Rule 10.9524 21 to
permit effective service by email.
The Rule 10.9550 Series sets forth the
procedures for expedited proceedings
and the ability of the Exchange Board to
call for review a proposed decision
prepared under the Rule 10.9550 Series.
Rule 10.9559(h) 22 sets forth the timing
16 Rule
10.9132(b) (Service of Orders, Notices,
and Decisions by Adjudicator; How Served).
17 Rule 10.9133(b) (Service of Papers Other Than
Complaints, Orders, Notices or Decisions; How
Served).
18 Rule 10.9146(l) (Motions; General).
19 See proposed Rule 10.9135(d) (Filing of Papers
with Adjudicator: Procedure; Party Contact
Information).
20 See proposed Rule 10.9522(a)(4) (Initiation of
Eligibility Proceeding; Member Regulation
Consideration; Service).
21 See proposed Rule 10.9524(d) (Exchange Board
of Directors Consideration; Service by Electronic
Mail; When Service is Complete).
22 Rule 10.9559(h) (Hearing Procedures for
Expedited Proceedings Under the Rule 10.9550
Series). Rule 10.9559(h) currently permits email as
a method of service.
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4247
and method of service requirements for
the parties’ exchange of proposed
exhibit and witness lists in advance of
an expedited proceeding, but do not
allow for email as a method of service.
The Exchange proposes to amend Rule
10.9559(h)(2) to require service of
exhibit and witness lists by email,
unless an alternative method of service
is ordered by the Adjudicator and to
remove text from Rule 10.9559(h)(1) that
requires that documents served by email
must also be served by overnight courier
or personal service.23 Finally, the
Exchange proposes to add new
paragraph (s) to Rule 10.9559 to provide
that, for purposes of proposed Rule
10.9559(h), service by email is complete
upon sending the documents or
decision.24
The Rule 10.9600 Series sets forth the
procedures for members to seek
exemptive relief from a variety of
Exchange rules. Rule 10.9630(e) 25
requires the Exchange (via the Chief
Regulatory Officer) to serve its decision
pursuant to Rules 10.9132 and 10.9134,
which do not allow for email as a
method of service. The proposed rule
change would amend Rule 10.9630 to
add new paragraph (d) to allow for
email as a method of service.26
The Exchange believes that this
proposal, like the approved FINRA
Rules, will modernize the rules and
make service and filing more efficient
and effective. Email technology is
widely available, and use of electronic
methods of service and filing is common
practice in the courts and other
regulatory agencies, including the
Commission.27
As noted below, the Exchange has
filed the proposed rule change for
immediate effectiveness and has
requested that the Commission 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,28
23 See proposed Rule 10.9559(h)(1), (2) (Hearing
Procedures for Expedited Proceedings Under the
Rule 10.9550 Series; Transmission of Documents).
24 See proposed Rule 10.9559(s) (Hearing
Procedures for Expedited Proceedings Under the
Rule 10.9550 Series; Service by Email; When
Service is Complete). Rule 10.9559(h) currently
permits email as a method of service.
25 See Rule 10.9630 (Procedures for Exemptions;
Appeal).
26 See proposed Rule 10.9630(f) (Appeal; Service
by Electronic Mail; When Service is Complete).
27 See supra note 9 (regarding Amendments to the
Commission’s Rules of Practice).
28 15 U.S.C. 78f(b).
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Federal Register / Vol. 88, No. 15 / Tuesday, January 24, 2023 / Notices
in general, and furthers the objectives of
section 6(b)(5),29 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.30
The Exchange believes that the
proposed rule change protects investors
and the public interest by requiring use
of broadly available technology to make
service and filing processes more
efficient and effective. The Exchange’s
disciplinary and eligibility proceedings
and other review processes serve a
critical role in providing investor
protection and maintaining fair and
orderly markets by, for example,
sanctioning misconduct and preventing
further customer harm by members and
associated persons.
The proposed rule change promotes
efficiency in these processes by
permitting electronic service and filing
in most instances. To ensure that
documents are effectively sent and
received, the Exchange is proposing to
require parties to provide and update
their contact information, including
their email address, during the course of
a proceeding. These amendments
reduce the reliance on paper documents
in favor of more efficient electronic
formats. The Exchange believes that the
proposed rule change regarding
electronic service and filing is
especially important as hybrid and
remote work become more common.
The Exchange notes that, per the
approved FINRA Rules, there are
procedures in place for persons who
lack the ability to use or access
technology necessary to send or receive
documents electronically to request
relief from FINRA (as the Adjudicator)
to file or serve documents by another
method. Per FINRA, requests to use
non-electronic methods of service were
rare during the approximately two year
period that it operated under the
temporary amendments and, as such,
FINRA anticipates that such requests
under the approved FINRA Rules will
be rare.
29 15
30 15
U.S.C. 78f(b)(5).
U.S.C. 78f(b)(7) & 78f(d).
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In addition, the proposed rule change
balances the interests of fairness and
efficiency. As discussed, service of the
initial complaint will continue to occur
by hand, mail or courier, rather than by
electronic means, thus ensuring there is
satisfactory notice and fair process.
Thus, the proposed rule change
represents a significant step toward
modernizing the service and filing
processes in a manner that will protect
investors and the public interest by
promoting efficiency while preserving
fair process.
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.
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 not intended to
address competitive issues but is
designed to modernize the service and
filing process in harmonization with the
approved FINRA Rules.
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
The Exchange has filed the proposed
rule change pursuant to section
19(b)(3)(A)(iii) of the Act 31 and Rule
19b–4(f)(6) thereunder.32 Because the
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
prior to 30 days from the date on which
it was filed, or such shorter time as the
Commission may designate, if
31 15
32 17
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U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
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consistent with the protection of
investors and the public interest, the
proposed rule change has become
effective pursuant to section 19(b)(3)(A)
of the Act and Rule 19b–4(f)(6)(iii)
thereunder.
A proposed rule change filed under
Rule 19b–4(f)(6) 33 normally does not
become operative prior to 30 days after
the date of the filing. However, pursuant
to Rule 19b–4(f)(6)(iii),34 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 states that this
filing is non-controversial and eligible
to become effective immediately
because the proposal promotes
uniformity in disciplinary rules across
self-regulatory organizations and
thereby enables the Exchange to
modernize the service and filing process
related to the conduct of disciplinary
hearings.35 The Exchange further states
that the proposed rule change would not
significantly affect the protection of
investors or the public interest or
impose any significant burden on
competition because the proposed rule
change is based on the approved FINRA
Rules. After reviewing the filing, 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.36
At any time within 60 days of the
filing of such 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
under section 19(b)(2)(B) 37 of the Act to
determine whether the proposed rule
change should be approved or
disapproved.
33 17
CFR 240.19b–4(f)(6).
CFR 240.19b–4(f)(6)(iii).
35 See supra Item II.
36 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).
37 15 U.S.C. 78s(b)(2)(B).
34 17
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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:
[FR Doc. 2023–01269 Filed 1–23–23; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
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–
NYSENAT–2023–03 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.
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For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.38
Sherry R. Haywood,
Assistant Secretary.
All submissions should refer to File
Number SR–NYSENAT–2023–03. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549 on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change.
Persons submitting comments are
cautioned that we do not redact or edit
personal identifying information from
comment submissions. You should
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–NYSENAT–2023–03 and
should be submitted on or before
February 14, 2023.
[Investment Company Act Release No.
34811; File No. 812–15224]
Forum Real Estate Income Fund, et al.
January 18, 2023.
Securities and Exchange
Commission (‘‘Commission’’ or ‘‘SEC’’).
ACTION: Notice.
AGENCY:
Notice of an application for an order
pursuant to section 6(c) of the
Investment Company Act of 1940 (the
‘‘Act’’) for an exemption from sections
18(a)(2), 18(c), and 18(i) of the Act,
pursuant to sections 6(c) and 23(c) of
the Act for certain exemptions from rule
23c–3 under the Act, and pursuant to
section 17(d) of the Act and rule 17d–
1 thereunder.
SUMMARY OF APPLICATION: Applicants
request an order to permit certain
registered closed-end management
investment companies to issue multiple
classes of shares and to impose early
withdrawal charges and asset-based
distribution and/or service fees.
APPLICANTS: Forum Real Estate Income
Fund (formerly Forum CRE Income
Fund) and Forum Capital Advisors LLC.
FILING DATES: The application was filed
on April 29, 2021, and amended on,
October 26, 2021, May 17, 2022, August
24, 2022, November 29, 2022, and
January 6, 2023.
HEARING OR NOTIFICATION OF HEARING:
An order granting the requested relief
will be issued unless the Commission
orders a hearing. Interested persons may
request a hearing on any application by
emailing the SEC’s Secretary at
Secretarys-Office@sec.gov and serving
the Applicants with a copy of the
request by email, if an email address is
listed for the relevant Applicant below,
or personally or by mail, if a physical
address is listed for the relevant
Applicant below. Hearing requests
should be received by the Commission
by 5:30 p.m. on February 13, 2023, and
should be accompanied by proof of
service on applicants, in the form of an
affidavit or, for lawyers, a certificate of
service. Pursuant to rule 0–5 under the
Act, hearing requests should state the
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19:17 Jan 23, 2023
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nature of the writer’s interest, any facts
bearing upon the desirability of a
hearing on the matter, the reason for the
request, and the issues contested.
Persons who wish to be notified of a
hearing may request notification by
emailing the Commission’s Secretary at
Secretarys-Office@sec.gov.
ADDRESSES: The Commission:
Secretarys-Office@sec.gov. Applicants:
Kelley Howes, Esq., khowes@mofo.com.
FOR FURTHER INFORMATION CONTACT: Asaf
Barouk, Senior Counsel, or Robert S.
Shapiro, Assistant Chief Counsel, at
(202) 551–6825 (Division of Investment
Management, Chief Counsel’s Office).
SUPPLEMENTARY INFORMATION: For
Applicants’ representations, legal
analysis, and conditions, please refer to
Applicants’ fifth amended and restated
application, dated January 6, 2023,
which may be obtained via the
Commission’s website by searching for
the file number at the top of this
document, or for an Applicant using the
Company name search field, on the
SEC’s EDGAR system. The SEC’s
EDGAR system may be searched at, at
https://www.sec.gov/edgar/searchedgar/
legacy/companysearch.html. You may
also call the SEC’s Public Reference
Room at (202) 551–8090.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023–01247 Filed 1–23–23; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–96696; File No. SR–
NYSENAT–2023–02]
Self-Regulatory Organizations; NYSE
National, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Modify Rule 7.31
January 18, 2023.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on January 4,
2023, NYSE National, Inc. (‘‘NYSE
National’’ 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
1 15
38 17
PO 00000
CFR 200.30–3(a)(12).
Frm 00099
Fmt 4703
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4249
2 17
E:\FR\FM\24JAN1.SGM
U.S.C. 78s(b)(1).
CFR 240.19b–4.
24JAN1
]]>Agencies
[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Notices]
[Pages 4246-4249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01269]
[[Page 4246]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-96693; File No. SR-NYSENAT-2023-03]
Self-Regulatory Organizations; NYSE National Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
Rules 10.9132, 10.9133, 10.9135, 10.9146, 10.9522, 10.9524, 10.9559 and
10.9630
January 18, 2023.
Pursuant to section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on January 4, 2023, NYSE National, Inc. (``NYSE National'' 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 to amend Rules 10.9132, 10.9133, 10.9135,
10.9146, 10.9522, 10.9524, 10.9559 and 10.9630 to permit, and in some
instances require, electronic service and filing of documents in
disciplinary and other proceedings and appeals, in conformity with
recent changes by the Financial Industry Regulatory Authority, Inc.
(``FINRA''). The proposed rule change is available on the Exchange's
website at www.nyse.com, at the principal office of the Exchange, and
at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend Rules 10.9132, 10.9133, 10.9135,
10.9146, 10.9522, 10.9524, 10.9559 and 10.9630 to permit, and in some
instances require, electronic service and filing of documents in
disciplinary and other proceedings, in conformity with recent changes
by FINRA.
In 2020, following the outbreak of the Coronavirus Disease
(``COVID-19''), FINRA temporarily amended certain of its rules,
including related to the method of service and filing in disciplinary
proceedings before the Office of Hearing Officers (OHO) and appeals
before the National Adjudicatory Council (NAC), among other types of
administrative proceedings (the ``temporary amendments'').\4\ The
temporary amendments allowed, and in some instances required, FINRA (in
its capacity as an Adjudicator per FINRA Rule 9120) to serve certain
documents on parties by electronic mail (``email'') and required
parties to file or serve documents by email, unless the parties agreed
to an alternative method of service.\5\ Earlier this year, FINRA made
permanent the temporary amendments to its rules regarding electronic
service and filing permanent, with some modifications.\6\
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\4\ See, e.g., Securities Exchange Act Release No. 88917 (May
20, 2020), 85 FR 31832 (May 27, 2020) (SR-FINRA-2020-015) (Notice
and immediate effectiveness of filing to temporarily amend certain
timing, method of service and other procedural requirements in FINRA
Rules during the outbreak of COVID-19). FINRA extended the temporary
amendments several times before filing to make certain of the
aforementioned amendments permanent. The temporary amendments
included rule changes to permit the conduct of virtual hearings
(i.e., Rules 9261 and 9830), which rule changes are not being
included in this proposal. Rather, the Exchange is solely copying a
subset of rules covered by the temporary amendments as discussed
herein.
\5\ See id.
\6\ See Securities Exchange Act Release Nos. 95147 (June 23,
2022), 87 FR 38803 (June 29, 2022) (order approving change to
certain FINRA rules to permit, and in some instances require,
electronic service and filing of documents in disciplinary and other
proceedings and appeals) (``Approval Order of FINRA Rules''); 94654
(April 8, 2022), 87 FR 22264 (April 14, 2022) (SR-FINRA-2022-009)
(``FINRA Notice''). The Approval Order of FINRA Rules related to
FINRA Rules 1012, 1015, 6490, 9132, 9133, 9135, 9146, 9321, 9341,
9349, 9351, 9522, 9524, 9559 and 9630 (collectively, ``the approved
FINRA Rules'').
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In support of its filing, FINRA noted that advances in technology
and its availability made filing and service permitted by the temporary
amendments more efficient than under FINRA's ``original'' (non-amended)
rules.\7\ Moreover, FINRA determined that electronic service and filing
is beneficial for parties, panelists and FINRA staff.\8\ FINRA also
noted that the Commission likewise amended its rules in November 2020
to require electronic filing and service of documents in its
administrative proceedings.\9\ For these reasons, FINRA determined that
making permanent the temporary amendments would similarly improve and
modernize FINRA's operations.\10\
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\7\ See FINRA Notice, 87 FR at 22267.
\8\ See FINRA Notice, 87 FR at 22267.
\9\ See Amendments to the Commission's Rules of Practice,
Securities Exchange Act Release No. 90442 (November 17, 2020), 85 FR
86464 (File No. S7-18-15) (December 30, 2020) (codified at 17 CFR
201 (2020)).
\10\ See FINRA Notice, 87 FR at 22266-67.
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To likewise improve and modernize Exchange rules, the Exchange
proposes to modify certain of its disciplinary rules to allow for
electronic service and filing of documents in disciplinary and other
proceedings in conformity with the approved FINRA Rules.\11\
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\11\ Consistent with the Approval Order of FINRA Rules, the
Exchange is not proposing to permit electronic service of an initial
complaint on a respondent due to heightened fair process concerns.
As is the case today, the only permissible methods of serving the
initial complaint are by hand, mail or courier. See Rule 10.9131(b)
(requiring that service be pursuant to Rule 10.9134(a)).
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Background
In 2018, NYSE National adopted disciplinary rules that are, with
certain exceptions, substantially the same as the disciplinary rules of
its affiliate NYSE American LLC, which are in turn substantially
similar to the FINRA Rule 8000 Series and Rule 9000 Series, and which
set forth rules for conducting investigations and enforcement
actions.\12\ The Exchange notes that FINRA and OHO administers
disciplinary hearings on the Exchange's behalf.
---------------------------------------------------------------------------
\12\ See Securities Exchange Act Release No. 83289 (May 17,
2018), 83 FR 23968, 23976 (May 23, 2018) (SR-NYSENAT-2018-02).
---------------------------------------------------------------------------
In adopting disciplinary rules modeled on FINRA's rules, the
Exchange adopted the filing, service and other procedural requirements
as contained the FINRA Rule 9100, 9500, and 9600 Series. As adopted,
the text of Exchange Rules 10.9132, 10.9133, 10.9135, 10.9146, 10.9522,
10.9524, 10.9559 and 10.9630 are based on, and are substantially the
same as, their counterpart FINRA rules.\13\
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\13\ The Exchange notes that this proposal adopts a subset of
the approved FINRA Rules, which subset are applicable to the
Exchange rules. As noted herein, this proposal does not extend to
the temporary amendments related to the conduct of virtual hearings
(i.e., Rules 10.9261 and 10.9830).
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[[Page 4247]]
Proposed Rule Change
Consistent with FINRA's recent proposal, the Exchange proposes to
amend certain of its disciplinary rules related to filing, service and
other procedural requirements and appeals. The proposed rule change
includes provisions to allow, and in some instances require, FINRA (in
its capacity as an Adjudicator per Rule 10.9120) to serve certain
documents on parties by email and require parties to file or serve
documents by email, unless another method of service is ordered by the
Adjudicator.\14\ In addition, to support the transition to email
service and filing, the Exchange proposes to require parties in OHO
proceedings to file and serve all parties with their current email
address and contact information at the time of their first appearance,
and to file and serve any change in email address or contact
information during the course of the proceeding.
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\14\ To the extent that a party lacks the ability to use or
access technology needed to file, serve or accept service by email,
FINRA, as adjudicator, may order an alternative method of service
upon a showing of good cause. See FINRA Notice, 87 FR at 22265.
---------------------------------------------------------------------------
The proposed rule change would permit service of documents other
than the initial complaint by email among various other methods of
service, such as personal service, mail and courier, and to provide
that service by email is deemed complete upon sending. The Exchange
intends to elect email service whenever possible. If the Exchange has
knowledge that the address used for service is not current or not
functional (i.e., the Exchange receives a bounce back or other message
indicating that there was a failure to deliver the email), the Exchange
will use other permissible methods of service until it can verify the
party's email address.\15\ The Exchange notes that, in most cases, the
Exchange and the relevant party, or their counsel, will have already
engaged in communications prior to the service of documents or other
information. Accordingly, in most cases, the Exchange will already have
information regarding the relevant party, or their counsel's, preferred
method of service.
---------------------------------------------------------------------------
\15\ As indicated in the proposed rule text, the Exchange will
consider service by email complete upon sending of the relevant
document or other information. This is consistent with service by
mail under the current rules.
---------------------------------------------------------------------------
The Rule 10.9000 Series, among other things, sets forth the
procedure for disciplinary proceedings concerning a member, associated
person or formerly associated person. The Rule 10.9100 Series is of
general applicability to all proceedings set forth in the Rule 10.9000
Series, unless a rule specifically provides otherwise. Rules
10.9132(b),\16\ 10.9133(b),\17\ and 10.9146(l) \18\ provide that the
documents and other information governed by those rules be served
pursuant to Rule 10.9134, which permits service on the parties using
the following methods: (1) personal service, (2) mail, or (3) courier.
Rule 10.9134 does not permit service by email. The proposed rule change
would amend Rule 10.9132(b) to allow service of the relevant documents
or information by email, and Rules 10.9133(b) and 10.9146(l) to require
parties to serve documents by email, unless an alternative method of
service is ordered by the Adjudicator.
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\16\ Rule 10.9132(b) (Service of Orders, Notices, and Decisions
by Adjudicator; How Served).
\17\ Rule 10.9133(b) (Service of Papers Other Than Complaints,
Orders, Notices or Decisions; How Served).
\18\ Rule 10.9146(l) (Motions; General).
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In addition, to support the transition to email service and filing,
the Exchange proposes to amend Rule 10.9135 to add paragraph (d), which
would require parties in OHO proceedings to file and serve the parties
with their current email address and contact information at the time of
their first appearance, and to file and serve any change in email
address or contact information during the course of the proceeding.\19\
The Exchange believes this proposed rule change will help ensure that
documents are successfully sent from and received at a valid email
address. It will also ensure that all participants, including the
Exchange, applicants, respondents and any other parties, have accurate
contact information for all parties.
---------------------------------------------------------------------------
\19\ See proposed Rule 10.9135(d) (Filing of Papers with
Adjudicator: Procedure; Party Contact Information).
---------------------------------------------------------------------------
The Rule 10.9520 Series sets forth the procedures for eligibility
proceedings and review of those proceedings by the Exchange Board.
Because the applicable rules in this series do not allow for email as a
method of service, the Exchange proposes to modify Rule 10.9522(a)(4)
\20\ and to add new paragraph (d) to Rule 10.9524 \21\ to permit
effective service by email.
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\20\ See proposed Rule 10.9522(a)(4) (Initiation of Eligibility
Proceeding; Member Regulation Consideration; Service).
\21\ See proposed Rule 10.9524(d) (Exchange Board of Directors
Consideration; Service by Electronic Mail; When Service is
Complete).
---------------------------------------------------------------------------
The Rule 10.9550 Series sets forth the procedures for expedited
proceedings and the ability of the Exchange Board to call for review a
proposed decision prepared under the Rule 10.9550 Series. Rule
10.9559(h) \22\ sets forth the timing and method of service
requirements for the parties' exchange of proposed exhibit and witness
lists in advance of an expedited proceeding, but do not allow for email
as a method of service. The Exchange proposes to amend Rule
10.9559(h)(2) to require service of exhibit and witness lists by email,
unless an alternative method of service is ordered by the Adjudicator
and to remove text from Rule 10.9559(h)(1) that requires that documents
served by email must also be served by overnight courier or personal
service.\23\ Finally, the Exchange proposes to add new paragraph (s) to
Rule 10.9559 to provide that, for purposes of proposed Rule 10.9559(h),
service by email is complete upon sending the documents or
decision.\24\
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\22\ Rule 10.9559(h) (Hearing Procedures for Expedited
Proceedings Under the Rule 10.9550 Series). Rule 10.9559(h)
currently permits email as a method of service.
\23\ See proposed Rule 10.9559(h)(1), (2) (Hearing Procedures
for Expedited Proceedings Under the Rule 10.9550 Series;
Transmission of Documents).
\24\ See proposed Rule 10.9559(s) (Hearing Procedures for
Expedited Proceedings Under the Rule 10.9550 Series; Service by
Email; When Service is Complete). Rule 10.9559(h) currently permits
email as a method of service.
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The Rule 10.9600 Series sets forth the procedures for members to
seek exemptive relief from a variety of Exchange rules. Rule 10.9630(e)
\25\ requires the Exchange (via the Chief Regulatory Officer) to serve
its decision pursuant to Rules 10.9132 and 10.9134, which do not allow
for email as a method of service. The proposed rule change would amend
Rule 10.9630 to add new paragraph (d) to allow for email as a method of
service.\26\
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\25\ See Rule 10.9630 (Procedures for Exemptions; Appeal).
\26\ See proposed Rule 10.9630(f) (Appeal; Service by Electronic
Mail; When Service is Complete).
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The Exchange believes that this proposal, like the approved FINRA
Rules, will modernize the rules and make service and filing more
efficient and effective. Email technology is widely available, and use
of electronic methods of service and filing is common practice in the
courts and other regulatory agencies, including the Commission.\27\
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\27\ See supra note 9 (regarding Amendments to the Commission's
Rules of Practice).
---------------------------------------------------------------------------
As noted below, the Exchange has filed the proposed rule change for
immediate effectiveness and has requested that the Commission 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,\28\
[[Page 4248]]
in general, and furthers the objectives of section 6(b)(5),\29\ 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.\30\
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\28\ 15 U.S.C. 78f(b).
\29\ 15 U.S.C. 78f(b)(5).
\30\ 15 U.S.C. 78f(b)(7) & 78f(d).
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The Exchange believes that the proposed rule change protects
investors and the public interest by requiring use of broadly available
technology to make service and filing processes more efficient and
effective. The Exchange's disciplinary and eligibility proceedings and
other review processes serve a critical role in providing investor
protection and maintaining fair and orderly markets by, for example,
sanctioning misconduct and preventing further customer harm by members
and associated persons.
The proposed rule change promotes efficiency in these processes by
permitting electronic service and filing in most instances. To ensure
that documents are effectively sent and received, the Exchange is
proposing to require parties to provide and update their contact
information, including their email address, during the course of a
proceeding. These amendments reduce the reliance on paper documents in
favor of more efficient electronic formats. The Exchange believes that
the proposed rule change regarding electronic service and filing is
especially important as hybrid and remote work become more common.
The Exchange notes that, per the approved FINRA Rules, there are
procedures in place for persons who lack the ability to use or access
technology necessary to send or receive documents electronically to
request relief from FINRA (as the Adjudicator) to file or serve
documents by another method. Per FINRA, requests to use non-electronic
methods of service were rare during the approximately two year period
that it operated under the temporary amendments and, as such, FINRA
anticipates that such requests under the approved FINRA Rules will be
rare.
In addition, the proposed rule change balances the interests of
fairness and efficiency. As discussed, service of the initial complaint
will continue to occur by hand, mail or courier, rather than by
electronic means, thus ensuring there is satisfactory notice and fair
process.
Thus, the proposed rule change represents a significant step toward
modernizing the service and filing processes in a manner that will
protect investors and the public interest by promoting efficiency while
preserving fair process.
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.
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
not intended to address competitive issues but is designed to modernize
the service and filing process in harmonization with the approved FINRA
Rules.
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
The Exchange has filed the proposed rule change pursuant to section
19(b)(3)(A)(iii) of the Act \31\ and Rule 19b-4(f)(6) thereunder.\32\
Because the 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 prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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\31\ 15 U.S.C. 78s(b)(3)(A)(iii).
\32\ 17 CFR 240.19b-4(f)(6).
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A proposed rule change filed under Rule 19b-4(f)(6) \33\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\34\ 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 states that
this filing is non-controversial and eligible to become effective
immediately because the proposal promotes uniformity in disciplinary
rules across self-regulatory organizations and thereby enables the
Exchange to modernize the service and filing process related to the
conduct of disciplinary hearings.\35\ The Exchange further states that
the proposed rule change would not significantly affect the protection
of investors or the public interest or impose any significant burden on
competition because the proposed rule change is based on the approved
FINRA Rules. After reviewing the filing, 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.\36\
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\33\ 17 CFR 240.19b-4(f)(6).
\34\ 17 CFR 240.19b-4(f)(6)(iii).
\35\ See supra Item II.
\36\ 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 such 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 under
section 19(b)(2)(B) \37\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\37\ 15 U.S.C. 78s(b)(2)(B).
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[[Page 4249]]
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-NYSENAT-2023-03 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-NYSENAT-2023-03. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSENAT-2023-03 and should be submitted
on or before February 14, 2023.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\38\
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\38\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-01269 Filed 1-23-23; 8:45 am]
BILLING CODE 8011-01-P
