Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Expiration Date of the Temporary Amendments to Rules 10.9261 and 10.9830, 9930-9934 [2023-03166]
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Federal Register / Vol. 88, No. 31 / Wednesday, February 15, 2023 / Notices
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20549; or send an email to: PRA_
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Dated: February 10, 2023.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023–03230 Filed 2–14–23; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–96868; File No. SR–
NYSENAT–2023–06]
Self-Regulatory Organizations; NYSE
National, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Extending the Expiration
Date of the Temporary Amendments to
Rules 10.9261 and 10.9830
February 9, 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
31, 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 extending the
expiration date of the temporary
amendments to Rules 10.9261 and
10.9830 as set forth in SR–NYSENAT–
2020–31 from January 31, 2023 to April
30, 2023, 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
National 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,
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
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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 extending the
expiration date of the temporary
amendments as set forth in SR–
NYSENAT–2020–31 4 to Rules 10.9261
(Evidence and Procedure in Hearing)
and 10.9830 (Hearing) from January 31,
2023 to April 30, 2023 to harmonize
with recent changes by FINRA to extend
the expiration date of the temporary
amendments to its Rules 9261 and 9830.
SR–NYSENAT–2020–31 temporarily
granted to the Chief or Deputy Chief
Hearing Officer the authority to order
that hearings be conducted by video
conference if warranted by the current
COVID–19 public health risks posed by
in-person hearings. The proposed rule
change would not make any changes to
the text of Exchange Rules 10.9261 and
10.9830.5
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.6
In adopting disciplinary rules
modeled on FINRA’s rules, NYSE
National 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
4 See Securities Exchange Act Release No. 90137
(October 8, 2020), 85 FR 65087 (October 14, 2020)
(SR–NYSENAT–2020–31) (‘‘SR–NYSENAT–2020–
31’’).
5 The Exchange may submit a separate rule filing
to extend the expiration date of the proposed
extension beyond April 30, 2023 if the Exchange
requires additional temporary relief from the rule
requirements identified in SR–NYSENAT–2020–31.
The amended NYSE National 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. 83289
(May 17, 2018), 83 FR 23968, 23976 (May 23, 2018)
(SR–NYSENAT–2018–02) (‘‘2018 Approval Order’’).
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Rule 10.9830 are substantially the same
as the FINRA rules with certain
modifications.7
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 9830.8
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 29,
2020, the Exchange filed to temporarily
amend Rule 10.9261 and Rule 10.9830
to permit FINRA to conduct virtual
hearings on its behalf.9 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,
2021.10 On December 22, 2020, the
Exchange similarly filed to extend the
temporary amendments to Rule 10.9261
and Rule 10.9830 to April 30, 2021.11
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, 2021.12 On April 20, 2021, the
Exchange filed to extend the temporary
amendments to Rule 10.9261 and Rule
10.9830 to August 31, 2021.13 On
August 13, 2021, FINRA filed a
proposed rule change, SR–FINRA–
2021–019, to extend the expiration date
of the temporary amendments to, among
other rules, FINRA Rule 9261 and 9830
from August 31, 2021, to December 31,
7 See
id.
Securities Exchange Act Release No. 89737
(September 2, 2020), 85 FR 55712 (September 9,
2020) (SR–FINRA–2020–027) (‘‘SR–FINRA–2020–
027’’).
9 See note 4, supra.
10 See Securities Exchange Act Release No. 90619
(December 9, 2020), 85 FR 81250 (December 15,
2020) (SR–FINRA–2020–042).
11 See Securities Exchange Act Release No. 90822
(December 30, 2020), 86 FR 627 (January 6, 2021)
(SR–NYSENAT–2020–39).
12 See Securities Exchange Act Release No. 91495
(April 7, 2021), 86 FR 19306 (April 13, 2021) (SR–
FINRA–2021–006).
13 See Securities Exchange Act Release No. 91634
(April 22, 2021), 86 FR 22477 (April 28, 2021) (SR–
NYSENAT–2021–11).
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8 See
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2021.14 On August 27, 2021, the
Exchange filed to extend the temporary
amendments to Rule 10.9261 and Rule
10.9830 to December 31, 2021.15 On
December 7, 2021, FINRA filed a
proposed rule change, SR–FINRA–
2021–031, to extend the expiration date
of the temporary amendments in both
SR–FINRA–2020–015 and SR–FINRA–
2020–027 from December 31, 2021, to
March 31, 2022.16 On December 27,
2021, the Exchange filed to extend the
temporary amendments to Rule 10.9261
and Rule 10.9830 to March 31, 2022,
after which the temporary amendments
will expire absent another proposed rule
change filing by the Exchange.17 On
March 7, 2022, FINRA filed to extend
the expiration date of the temporary rule
amendments to, among other rules,
FINRA Rule 9261 and 9830 from March
31, 2022, to July 31, 2022.18 On March
29, 2022, the Exchange filed to extend
the temporary amendments to Rule 9261
and Rule 9830 to July 31, 2022.19 On
July 8, 2022, FINRA filed to extend the
expiration date of the temporary rule
amendments to, among other rules,
FINRA Rule 9261 and 9830 from July
31, 2022 to October 31, 2022.20 On July
29, 2022, the Exchange filed to extend
the temporary amendments to Rule
10.9261 and Rule 10.9830 to October 31,
2022.21 On October 17, 2022, FINRA
filed to extend the expiration date of the
temporary rule amendments to, among
other rules, FINRA Rule 9261 and 9830
from October 31, 2022 to January 31,
2023.22 On October 28, 2022, the
Exchange filed to extend the temporary
amendments to Rule 9261 and Rule
9830 to January 31, 2023, after which
the temporary amendments will expire
14 See Securities Exchange Act Release No. 92685
(August 17, 2021), 86 FR 47169 (August 23, 2021)
(SR–FINRA–2021–019).
15 See Securities Exchange Act Release No. 92908
(September 9, 2021), 86 FR 51424 (September 15,
2021) (SR–NYSENAT–2021–16).
16 See Securities Exchange Act Release No. 93758
(December 13, 2021), 86 FR 71695 (December 17,
2021) (SR–FINRA–2021–31).
17 See Securities Exchange Act Release No. 93919
(January 6, 2022), 87 FR 1804 (January 12, 2022)
(SR–NYSENAT–2021–25).
18 See Securities Exchange Act Release No. 94430
(March 16, 2022), 87 FR 16262 (March 22, 2022)
(SR–FINRA–2022–004).
19 See Securities Exchange Act Release No. 94662
(April 11, 2022), 87 FR 22601 (April 15, 2022) (SR–
NYSENAT–2022–03).
20 See Securities Exchange Act Release No. 95281
(July 14, 2022), 87 FR 43335 (July 20, 2022) (SR–
FINRA–2022–018).
21 See Securities Exchange Act Release No. 95476
(August 11, 2022), 87 FR 50668 (August 17, 2022)
(SR–NYSENAT–2022–14).
22 See Securities Exchange Act Release No. 96107
(October 19, 2022), 87 FR 64526 (October 25, 2022)
(SR–FINRA–2022–029).
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9931
absent another proposed rule change
filing by the Exchange.23
According to FINRA, due to the
upward trend in the number of COVID–
19 cases since October 2022—when
FINRA last filed to extend the
temporary relief, COVID–19 still
remains a public health concern.24 For
example, according to the Centers for
Disease Control and Prevention
(‘‘CDC’’), approximately 61.73 percent
of counties in the United States have a
medium or high COVID–19 Community
Level based on the CDC’s most recent
calculations.25 The daily average
number of hospital admissions is also
on the rise.26 Much uncertainty also
remains as to whether there will be a
significant increase in the number of
cases of COVID–19 in the future given
the emergence of new Omicron variants
that the CDC currently is tracking 27 and
the dissimilar vaccination rates
(completed primary series and a first
booster dose) throughout the United
States.28 Due to the continued presence
and uncertainty of COVID–19, FINRA
believes that there is a continued need
for temporary relief beyond January 31,
2023.29 On January 18, 2023, FINRA
accordingly filed to extend the
expiration date of the temporary rule
amendments to, among other rules,
FINRA Rule 9261 and 9830 from
January 31, 2023 to April 30, 2023.30
23 See Securities Exchange Act Release No. 96262
(November 8, 2022), 87 FR 68540 (November 15,
2022) (SR–NYSENAT–2022–24).
24 See Securities Exchange Act Release No. 96746
(January 25, 2023) (‘‘SR–FINRA–2023–001’’).
25 See CDC, COVID Data Tracker—COVID–19
Integrated County View, https://covid.cdc.gov/
covid-data-tracker/#county-view?list_select_
state=all_states&list_select_county=all_
counties&datatype=CommunityLevels&null=CommunityLevels
(last visited Oct. 11, 2022).
26 See CDC, COVID Data Tracker Weekly
Review—Daily Trend in Number of New COVID–
19 Hospital Admissions in the United States,
https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/ (last visited Jan. 9, 2023)
(‘‘The current 7-day daily average for December 28,
2022–January 3, 2023, was 6,519. This is a 16.1%
increase from the prior 7-day average (5,613) from
December 21–27, 2022.’’).
27 These new Omicron variants include BQ.1.1,
XBB.1.5 and BQ.1. See CDC, COVID Data Tracker—
Variant Proportions, https://covid.cdc.govicoviddata-trackerNvariant-proportions (last visited Jan.
9, 2023).
28 A state-by-state comparison of vaccination rates
is available at https://covid.cdc.gov/covid-datatracker/#vaccinations_vacc-people-additional-dosetotalpop (last visited Jan. 9, 2023).
29 See SR–FINRA–2023–001.
30 See generally SR–FINRA–2023–001. As a
further basis for extending the temporary rule relief
until April 30, 2023, FINRA noted that its Board has
approved the submission of a rule proposal to the
Commission to make permanent, with some
modifications, the temporary rules to allow
hearings to be conducted by video conference
originally set forth in SR–FINRA–2020–027 and
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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
National Rules 10.9261 and 10.9830 as
set forth in SR–NYSENAT–2020–31
from January 31, 2023 to April 30, 2023.
As set forth in SR–FINRA–2023–001,
due to the upward trend in the number
of COVID–19 cases since October
2022—when FINRA last filed to extend
the temporary relief, COVID–19 still
remains a public health concern. For
example, according to the Centers for
Disease Control and Prevention
(‘‘CDC’’), approximately 61.73 percent
of counties in the United States have a
medium or high COVID–19 Community
Level based on the CDC’s most recent
calculations.31 The daily average
number of hospital admissions is also
on the rise.32 Much uncertainty also
remains as to whether there will be a
significant increase in the number of
cases of COVID–19 in the future given
the emergence of new Omicron variants
that the CDC currently is tracking 33 and
the dissimilar vaccination rates
(completed primary series and a first
booster dose) throughout the United
States.34 Due to the continued presence
and uncertainty of COVID–19, FINRA
believes that there is a continued need
for temporary relief beyond January 31,
2023.35 FINRA accordingly proposed to
extend the expiration date of the
temporary rule amendments from
January 31, 2023 to April 30, 2023.
The Exchange proposes to similarly
extend the expiration date of the
temporary rule amendments to NYSE
National Rules 10.9261 and 10.9830 as
set forth in SR–NYSENAT–2020–31
from January 31, 2023 to April 30, 2023.
The Exchange agrees with FINRA that,
due to the upward trend in the number
of COVID–19 cases since October
2022—when FINRA last filed to extend
the temporary relief, that COVID–19 still
SR–FINRA–2020–015. See https://www.finra.org/
about/governance/finra-board-governors/meetings/
update-finra-board-governors-meeting-december2022. See id., at n 14. FINRA indicated that the
extension of the temporary rule amendments until
April 30, 2023 would help avoid FINRA’s rules
reverting to their original form and allow FINRA
time to file for (and the Commission time to
approve) the permanent rules. See id.
31 See supra note 25 (CDC, COVID Data Tracker—
COVID–19 Integrated County View).
32 See supra note 26 (CDC, COVID Data Tracker
Weekly Review—Daily Trend in Number of New
COVID–19 Hospital Admissions in the United
States).
33 See supra note 27 (regarding the new Omicron
variants described in CDC, COVID Data Tracker—
Variant Proportions).
34 See supra note 28 (regarding state-by-state
comparison of COVID–19 vaccination rates).
35 See SR–FINRA–2023–001.
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remains a public health concern. The
Exchange also agrees that, due to the
continued presence and uncertainty of
COVID–19, for the reasons set forth in
SR–FINRA–2023–001, there is a
continued need for this temporary relief
beyond January 31, 2023. 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–
2023–001, in deciding whether to
schedule a hearing by video conference,
OHO may consider a variety of other
factors in addition to COVID–19 trends.
Similarly, as noted in SR–FINRA–2023–
001, 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.36 The
Exchange believes that this is a
reasonable procedure to continue to
follow for hearings under Rules 10.9261
and 10.9830 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,37 in general, and furthers the
objectives of Section 6(b)(5),38 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
SR–FINRA–2023–001.
U.S.C. 78f(b).
38 15 U.S.C. 78f(b)(5).
members, consistent with Sections
6(b)(7) and 6(d) of the Act.39
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 as set forth
in SR–FINRA–2023–001, will permit the
Exchange to continue to effectively
conduct hearings given the continued
presence and uncertainty of COVID–19.
Given that COVID–19 remains a public
health concern and the uncertainty
around a potential spike in cases of the
disease, 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 SR–
NYSENAT–2020–31, 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 40 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 SR–NYSENAT–2020–31, provides
only temporary relief. As proposed, the
36 See
37 15
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39 15
40 15
E:\FR\FM\15FEN1.SGM
U.S.C. 78f(b)(7) & 78f(d).
U.S.C. 78f(b)(7) & 78f(d).
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changes would be in place through
April 30, 2023. As noted in SR–
NYSENAT–2020–31 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.
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 extend
temporary relief necessitated by the
continued presence and uncertainty of
COVID–19 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 January 31, 2023.
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.
ddrumheller on DSK120RN23PROD with NOTICES
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 41 and Rule
19b–4(f)(6) thereunder.42 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.
41 15
42 17
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
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A proposed rule change filed under
Rule 19b–4(f)(6) 43 normally does not
become operative prior to 30 days after
the date of the filing. However, pursuant
to Rule 19b4(f)(6)(iii),44 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 there is a continued
need to extend the temporary relief
because the Exchange agrees with
FINRA that the COVID–19 related
health concerns necessitating this relief
will continue beyond January 31,
2023.45 The Exchange also states that
extending the temporary relief provided
in SR–NYSENAT–2020–31 immediately
upon filing and without a 30-day
operative delay will allow the Exchange
to continue critical adjudicatory and
review processes so that the Exchange
may continue to operate effectively and
meet its critical investor protection
goals, while also protecting the health
and safety of hearing participants.46 The
Commission also notes that this
proposal extends without change the
temporary relief previously provided by
SR–NYSENAT–2020–31.47 As
proposed, the temporary changes would
be in place through April 30, 2023 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.48 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.49
At any time within 60 days of the
filing of such proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
43 17
CFR 240.19b–4(f)(6).
CFR 240.19b–4(f)(6)(iii).
45 See supra Item II; see also SR–FINRA–2023–
001.
46 See SR–FINRA–2023–001 (noting the same in
granting FINRA’s request to waive the 30-day
operative delay so that SR–FINRA–2023–001 would
become operative immediately upon filing).
47 See supra note 4.
48 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 April 30, 2023, it may submit a separate
rule filing to extend the effectiveness of the
temporary relief under these rules.
49 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).
44 17
PO 00000
Frm 00083
Fmt 4703
Sfmt 4703
9933
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) 50 of the Act to
determine whether the proposed rule
change should be approved or
disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSENAT–2023–06 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–2023–06. 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
50 15
E:\FR\FM\15FEN1.SGM
U.S.C. 78s(b)(2)(B).
15FEN1
9934
Federal Register / Vol. 88, No. 31 / Wednesday, February 15, 2023 / Notices
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–2023–06 and
should be submitted on or before March
8, 2023.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.51
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023–03166 Filed 2–14–23; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–96870; File No. SR–
NYSEAMER–2023–09]
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Change Extending the Expiration Date
of the Temporary Amendments to
Rules 9261 and 9830
February 9, 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
30, 2023, 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.
ddrumheller on DSK120RN23PROD with NOTICES
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 9261 and 9830 as
set forth in SR–NYSEAMER–2020–69
from January 31, 2023 to April 30, 2023,
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
51 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
VerDate Sep<11>2014
21:16 Feb 14, 2023
Jkt 259001
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 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 January 31,
2023 to April 30, 2023, 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 the current
COVID–19 public health risks posed by
in-person hearings. 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
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 April 30, 2023 if the Exchange
requires additional temporary relief from the rule
requirements identified in SR–NYSEAMER–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.
PO 00000
Frm 00084
Fmt 4703
Sfmt 4703
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
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,
6 See Securities Exchange Act Release Nos. 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).
8 See 2016 Notice, 81 FR at 11327 & 11332.
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 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).
E:\FR\FM\15FEN1.SGM
15FEN1
]]>Agencies
[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Notices]
[Pages 9930-9934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03166]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-96868; File No. SR-NYSENAT-2023-06]
Self-Regulatory Organizations; NYSE National, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Extending
the Expiration Date of the Temporary Amendments to Rules 10.9261 and
10.9830
February 9, 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 31, 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes extending the expiration date of the
temporary amendments to Rules 10.9261 and 10.9830 as set forth in SR-
NYSENAT-2020-31 from January 31, 2023 to April 30, 2023, 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 National 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 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 extending the expiration date of the
temporary amendments as set forth in SR-NYSENAT-2020-31 \4\ to Rules
10.9261 (Evidence and Procedure in Hearing) and 10.9830 (Hearing) from
January 31, 2023 to April 30, 2023 to harmonize with recent changes by
FINRA to extend the expiration date of the temporary amendments to its
Rules 9261 and 9830. SR-NYSENAT-2020-31 temporarily granted to the
Chief or Deputy Chief Hearing Officer the authority to order that
hearings be conducted by video conference if warranted by the current
COVID-19 public health risks posed by in-person hearings. The proposed
rule change would not make any changes to the text of Exchange Rules
10.9261 and 10.9830.\5\
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 90137 (October 8,
2020), 85 FR 65087 (October 14, 2020) (SR-NYSENAT-2020-31) (``SR-
NYSENAT-2020-31'').
\5\ The Exchange may submit a separate rule filing to extend the
expiration date of the proposed extension beyond April 30, 2023 if
the Exchange requires additional temporary relief from the rule
requirements identified in SR-NYSENAT-2020-31. The amended NYSE
National rules will revert back to their original state at the
conclusion of the temporary relief period and any extension thereof.
---------------------------------------------------------------------------
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.\6\
---------------------------------------------------------------------------
\6\ See Securities Exchange Act Release No. 83289 (May 17,
2018), 83 FR 23968, 23976 (May 23, 2018) (SR-NYSENAT-2018-02)
(``2018 Approval Order'').
---------------------------------------------------------------------------
In adopting disciplinary rules modeled on FINRA's rules, NYSE
National 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
[[Page 9931]]
Rule 10.9830 are substantially the same as the FINRA rules with certain
modifications.\7\
---------------------------------------------------------------------------
\7\ See id.
---------------------------------------------------------------------------
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.\8\
---------------------------------------------------------------------------
\8\ 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 29, 2020, the Exchange filed to temporarily amend Rule
10.9261 and Rule 10.9830 to permit FINRA to conduct virtual hearings on
its behalf.\9\ 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.\10\ 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.\11\ 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.\12\ On April 20, 2021, the Exchange filed
to extend the temporary amendments to Rule 10.9261 and Rule 10.9830 to
August 31, 2021.\13\ On August 13, 2021, FINRA filed a proposed rule
change, SR-FINRA-2021-019, to extend the expiration date of the
temporary amendments to, among other rules, FINRA Rule 9261 and 9830
from August 31, 2021, to December 31, 2021.\14\ On August 27, 2021, the
Exchange filed to extend the temporary amendments to Rule 10.9261 and
Rule 10.9830 to December 31, 2021.\15\ On December 7, 2021, FINRA filed
a proposed rule change, SR-FINRA-2021-031, to extend the expiration
date of the temporary amendments in both SR-FINRA-2020-015 and SR-
FINRA-2020-027 from December 31, 2021, to March 31, 2022.\16\ On
December 27, 2021, the Exchange filed to extend the temporary
amendments to Rule 10.9261 and Rule 10.9830 to March 31, 2022, after
which the temporary amendments will expire absent another proposed rule
change filing by the Exchange.\17\ On March 7, 2022, FINRA filed to
extend the expiration date of the temporary rule amendments to, among
other rules, FINRA Rule 9261 and 9830 from March 31, 2022, to July 31,
2022.\18\ On March 29, 2022, the Exchange filed to extend the temporary
amendments to Rule 9261 and Rule 9830 to July 31, 2022.\19\ On July 8,
2022, FINRA filed to extend the expiration date of the temporary rule
amendments to, among other rules, FINRA Rule 9261 and 9830 from July
31, 2022 to October 31, 2022.\20\ On July 29, 2022, the Exchange filed
to extend the temporary amendments to Rule 10.9261 and Rule 10.9830 to
October 31, 2022.\21\ On October 17, 2022, FINRA filed to extend the
expiration date of the temporary rule amendments to, among other rules,
FINRA Rule 9261 and 9830 from October 31, 2022 to January 31, 2023.\22\
On October 28, 2022, the Exchange filed to extend the temporary
amendments to Rule 9261 and Rule 9830 to January 31, 2023, after which
the temporary amendments will expire absent another proposed rule
change filing by the Exchange.\23\
---------------------------------------------------------------------------
\9\ See note 4, supra.
\10\ See Securities Exchange Act Release No. 90619 (December 9,
2020), 85 FR 81250 (December 15, 2020) (SR-FINRA-2020-042).
\11\ See Securities Exchange Act Release No. 90822 (December 30,
2020), 86 FR 627 (January 6, 2021) (SR-NYSENAT-2020-39).
\12\ See Securities Exchange Act Release No. 91495 (April 7,
2021), 86 FR 19306 (April 13, 2021) (SR-FINRA-2021-006).
\13\ See Securities Exchange Act Release No. 91634 (April 22,
2021), 86 FR 22477 (April 28, 2021) (SR-NYSENAT-2021-11).
\14\ See Securities Exchange Act Release No. 92685 (August 17,
2021), 86 FR 47169 (August 23, 2021) (SR-FINRA-2021-019).
\15\ See Securities Exchange Act Release No. 92908 (September 9,
2021), 86 FR 51424 (September 15, 2021) (SR-NYSENAT-2021-16).
\16\ See Securities Exchange Act Release No. 93758 (December 13,
2021), 86 FR 71695 (December 17, 2021) (SR-FINRA-2021-31).
\17\ See Securities Exchange Act Release No. 93919 (January 6,
2022), 87 FR 1804 (January 12, 2022) (SR-NYSENAT-2021-25).
\18\ See Securities Exchange Act Release No. 94430 (March 16,
2022), 87 FR 16262 (March 22, 2022) (SR-FINRA-2022-004).
\19\ See Securities Exchange Act Release No. 94662 (April 11,
2022), 87 FR 22601 (April 15, 2022) (SR-NYSENAT-2022-03).
\20\ See Securities Exchange Act Release No. 95281 (July 14,
2022), 87 FR 43335 (July 20, 2022) (SR-FINRA-2022-018).
\21\ See Securities Exchange Act Release No. 95476 (August 11,
2022), 87 FR 50668 (August 17, 2022) (SR-NYSENAT-2022-14).
\22\ See Securities Exchange Act Release No. 96107 (October 19,
2022), 87 FR 64526 (October 25, 2022) (SR-FINRA-2022-029).
\23\ See Securities Exchange Act Release No. 96262 (November 8,
2022), 87 FR 68540 (November 15, 2022) (SR-NYSENAT-2022-24).
---------------------------------------------------------------------------
According to FINRA, due to the upward trend in the number of COVID-
19 cases since October 2022--when FINRA last filed to extend the
temporary relief, COVID-19 still remains a public health concern.\24\
For example, according to the Centers for Disease Control and
Prevention (``CDC''), approximately 61.73 percent of counties in the
United States have a medium or high COVID-19 Community Level based on
the CDC's most recent calculations.\25\ The daily average number of
hospital admissions is also on the rise.\26\ Much uncertainty also
remains as to whether there will be a significant increase in the
number of cases of COVID-19 in the future given the emergence of new
Omicron variants that the CDC currently is tracking \27\ and the
dissimilar vaccination rates (completed primary series and a first
booster dose) throughout the United States.\28\ Due to the continued
presence and uncertainty of COVID-19, FINRA believes that there is a
continued need for temporary relief beyond January 31, 2023.\29\ On
January 18, 2023, FINRA accordingly filed to extend the expiration date
of the temporary rule amendments to, among other rules, FINRA Rule 9261
and 9830 from January 31, 2023 to April 30, 2023.\30\
---------------------------------------------------------------------------
\24\ See Securities Exchange Act Release No. 96746 (January 25,
2023) (``SR-FINRA-2023-001'').
\25\ See CDC, COVID Data Tracker--COVID-19 Integrated County
View, https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels&null=CommunityLevels (last visited Oct. 11,
2022).
\26\ See CDC, COVID Data Tracker Weekly Review--Daily Trend in
Number of New COVID-19 Hospital Admissions in the United States,
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/ (last visited Jan. 9, 2023) (``The current 7-day daily
average for December 28, 2022-January 3, 2023, was 6,519. This is a
16.1% increase from the prior 7-day average (5,613) from December
21-27, 2022.'').
\27\ These new Omicron variants include BQ.1.1, XBB.1.5 and
BQ.1. See CDC, COVID Data Tracker--Variant Proportions, https://covid.cdc.govicovid-data-trackerNvariant-proportions (last visited
Jan. 9, 2023).
\28\ A state-by-state comparison of vaccination rates is
available at https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-additional-dose-totalpop (last visited
Jan. 9, 2023).
\29\ See SR-FINRA-2023-001.
\30\ See generally SR-FINRA-2023-001. As a further basis for
extending the temporary rule relief until April 30, 2023, FINRA
noted that its Board has approved the submission of a rule proposal
to the Commission to make permanent, with some modifications, the
temporary rules to allow hearings to be conducted by video
conference originally set forth in SR-FINRA-2020-027 and SR-FINRA-
2020-015. See https://www.finra.org/about/governance/finra-board-governors/meetings/update-finra-board-governors-meeting-december-2022. See id., at n 14. FINRA indicated that the extension of the
temporary rule amendments until April 30, 2023 would help avoid
FINRA's rules reverting to their original form and allow FINRA time
to file for (and the Commission time to approve) the permanent
rules. See id.
---------------------------------------------------------------------------
[[Page 9932]]
Proposed Rule Change
Consistent with FINRA's recent proposal, the Exchange proposes to
extend the expiration date of the temporary rule amendments to NYSE
National Rules 10.9261 and 10.9830 as set forth in SR-NYSENAT-2020-31
from January 31, 2023 to April 30, 2023.
As set forth in SR-FINRA-2023-001, due to the upward trend in the
number of COVID-19 cases since October 2022--when FINRA last filed to
extend the temporary relief, COVID-19 still remains a public health
concern. For example, according to the Centers for Disease Control and
Prevention (``CDC''), approximately 61.73 percent of counties in the
United States have a medium or high COVID-19 Community Level based on
the CDC's most recent calculations.\31\ The daily average number of
hospital admissions is also on the rise.\32\ Much uncertainty also
remains as to whether there will be a significant increase in the
number of cases of COVID-19 in the future given the emergence of new
Omicron variants that the CDC currently is tracking \33\ and the
dissimilar vaccination rates (completed primary series and a first
booster dose) throughout the United States.\34\ Due to the continued
presence and uncertainty of COVID-19, FINRA believes that there is a
continued need for temporary relief beyond January 31, 2023.\35\ FINRA
accordingly proposed to extend the expiration date of the temporary
rule amendments from January 31, 2023 to April 30, 2023.
---------------------------------------------------------------------------
\31\ See supra note 25 (CDC, COVID Data Tracker--COVID-19
Integrated County View).
\32\ See supra note 26 (CDC, COVID Data Tracker Weekly Review--
Daily Trend in Number of New COVID-19 Hospital Admissions in the
United States).
\33\ See supra note 27 (regarding the new Omicron variants
described in CDC, COVID Data Tracker--Variant Proportions).
\34\ See supra note 28 (regarding state-by-state comparison of
COVID-19 vaccination rates).
\35\ See SR-FINRA-2023-001.
---------------------------------------------------------------------------
The Exchange proposes to similarly extend the expiration date of
the temporary rule amendments to NYSE National Rules 10.9261 and
10.9830 as set forth in SR-NYSENAT-2020-31 from January 31, 2023 to
April 30, 2023. The Exchange agrees with FINRA that, due to the upward
trend in the number of COVID-19 cases since October 2022--when FINRA
last filed to extend the temporary relief, that COVID-19 still remains
a public health concern. The Exchange also agrees that, due to the
continued presence and uncertainty of COVID-19, for the reasons set
forth in SR-FINRA-2023-001, there is a continued need for this
temporary relief beyond January 31, 2023. 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-2023-001, in deciding whether to
schedule a hearing by video conference, OHO may consider a variety of
other factors in addition to COVID-19 trends. Similarly, as noted in
SR-FINRA-2023-001, 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.\36\ The Exchange believes that this is a reasonable
procedure to continue to follow for hearings under Rules 10.9261 and
10.9830 chaired by a FINRA employee.
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\36\ See SR-FINRA-2023-001.
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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,\37\ in general, and furthers the objectives of Section
6(b)(5),\38\ 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.\39\
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\37\ 15 U.S.C. 78f(b).
\38\ 15 U.S.C. 78f(b)(5).
\39\ 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 as set forth in SR-FINRA-2023-001,
will permit the Exchange to continue to effectively conduct hearings
given the continued presence and uncertainty of COVID-19. Given that
COVID-19 remains a public health concern and the uncertainty around a
potential spike in cases of the disease, 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 SR-NYSENAT-2020-31, 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 \40\ 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 SR-NYSENAT-2020-31, provides only temporary relief. As
proposed, the
[[Page 9933]]
changes would be in place through April 30, 2023. As noted in SR-
NYSENAT-2020-31 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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\40\ 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.
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 extend temporary relief necessitated by the
continued presence and uncertainty of COVID-19 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 January 31, 2023.
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 \41\ and Rule 19b-4(f)(6) thereunder.\42\
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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\41\ 15 U.S.C. 78s(b)(3)(A)(iii).
\42\ 17 CFR 240.19b-4(f)(6).
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A proposed rule change filed under Rule 19b-4(f)(6) \43\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\44\ 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 there is a continued need to extend the temporary relief
because the Exchange agrees with FINRA that the COVID-19 related health
concerns necessitating this relief will continue beyond January 31,
2023.\45\ The Exchange also states that extending the temporary relief
provided in SR-NYSENAT-2020-31 immediately upon filing and without a
30-day operative delay will allow the Exchange to continue critical
adjudicatory and review processes so that the Exchange may continue to
operate effectively and meet its critical investor protection goals,
while also protecting the health and safety of hearing
participants.\46\ The Commission also notes that this proposal extends
without change the temporary relief previously provided by SR-NYSENAT-
2020-31.\47\ As proposed, the temporary changes would be in place
through April 30, 2023 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.\48\ 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.\49\
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\43\ 17 CFR 240.19b-4(f)(6).
\44\ 17 CFR 240.19b-4(f)(6)(iii).
\45\ See supra Item II; see also SR-FINRA-2023-001.
\46\ See SR-FINRA-2023-001 (noting the same in granting FINRA's
request to waive the 30-day operative delay so that SR-FINRA-2023-
001 would become operative immediately upon filing).
\47\ See supra note 4.
\48\ 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 April 30, 2023, it may submit a
separate rule filing to extend the effectiveness of the temporary
relief under these rules.
\49\ 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) \50\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\50\ 15 U.S.C. 78s(b)(2)(B).
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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:
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-2023-06 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-2023-06. 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
[[Page 9934]]
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-2023-06 and should
be submitted on or before March 8, 2023.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\51\
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\51\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-03166 Filed 2-14-23; 8:45 am]
BILLING CODE 8011-01-P
