80_FR_72089 80 FR 71868 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Constituting a Stated Interpretation With Respect to the Meaning, Administration, and Enforcement of Rule 28

80 FR 71868 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Constituting a Stated Interpretation With Respect to the Meaning, Administration, and Enforcement of Rule 28

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 221 (November 17, 2015)

Page Range71868-71870
FR Document2015-29228

Federal Register, Volume 80 Issue 221 (Tuesday, November 17, 2015)
[Federal Register Volume 80, Number 221 (Tuesday, November 17, 2015)]
[Notices]
[Pages 71868-71870]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-29228]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76422; File No. SR-NYSE-2015-45]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Constituting a Stated Interpretation With Respect to the Meaning, 
Administration, and Enforcement of Rule 28

November 10, 2015.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that October 28,

[[Page 71869]]

2015, New York Stock Exchange LLC (``NYSE'' 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 constitute a stated interpretation with 
respect to the meaning, administration, and enforcement of Rule 28. The 
proposed rule change is available on the Exchange's Web site 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 a rule change that constitutes a stated 
interpretation with respect to the meaning, administration, and 
enforcement of Rule 28 (``Rule 28''). The Exchange is not proposing any 
changes to the text of the current version of Rule 28.
    Approved in 2003,\4\ Rule 28 describes and provides the basis for 
the Exchange's practice of conducting fingerprint-based criminal record 
checks. The Rule permits the Exchange to obtain fingerprints of 
prospective and current employees, temporary personnel, independent 
contractors and service providers of the Exchange and its principal 
subsidiaries; submit those fingerprints to the Attorney General of the 
United States or his or her designee (``Attorney General'') for 
identification and processing; and receive criminal history record 
information from the Attorney General for evaluation and use, in 
accordance with applicable law, in enhancing the security of the 
facilities, systems, data, and/or records of the Exchange and its 
principal subsidiaries.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 4811 (July 1, 2003), 
68 FR 41033 (July 9, 2003) (SR-NYSE-2003-18).
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    The Exchange utilizes a Live-Scan \5\ electronic system to capture 
and transmit fingerprints directly to the Federal Bureau of 
Investigation (``FBI''), which maintains on behalf of the Attorney 
General a database of fingerprint-based criminal history records. The 
capture and transmittal function, and corresponding receipt of criminal 
history information from the FBI, is handled directly by Exchange 
personnel. The Exchange intends to engage an FBI-approved ``Channel 
Partner'' \6\ to maintain and operate, on behalf of the Exchange, a 
Live-Scan and/or other electronic system(s) for the submission of 
fingerprints to the FBI; to receive and maintain criminal history 
record information from the FBI; and to disseminate such information, 
through secure systems, to a limited set of approved reviewing 
officials within the Exchange and its affiliates. The Exchange believes 
Rule 28 allows for the retention of a Channel Partner for these 
purposes.\7\
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    \5\ Live-Scan refers to the process of capturing fingerprints 
directly into a digitized format as opposed to traditional ink and 
paper methods. Live-Scan technology captures and transfers images to 
a central location and/or interface for identification processing. 
The Exchange has used Live-Scan technology for fingerprinting since 
Rule 28 was approved in 2003.
    \6\ FBI-approved Channel Partners receive the fingerprint 
submission and relevant data, collect the associated fee(s), 
electronically forward the fingerprint submission with the necessary 
information to the FBI Criminal Justice Information Services 
Division (``CJIS'') for a national Criminal History Summary check, 
and receive the electronic summary check result for dissemination to 
the authorized employer entity. See Securities Exchange Act Release 
No. 71066 (December 12, 2013), 78 FR 76667 (December 18, 2013) (SR-
ISE-2013-66).
    \7\ Rule 28 allows the Exchange to obtain fingerprints from 
service providers, including employees of affiliates of the 
Exchange. See Chicago Board Options Exchange, Incorporated 
(``CBOE'') Rule 15.10; Securities Exchange Act Release No. 69496 
(May 2, 2013), 78 FR 26671, 26671 (May 7, 2013) (SR-CBOE-2013-044) 
(CBOE conducts fingerprint-based criminal record checks of 
directors, officers and employees as well as, without limitation, 
``temporary personnel, independent contractors, consultants, vendors 
and service providers . . . who have or are anticipated to have 
access to facilities and records.'').
---------------------------------------------------------------------------

    The foregoing interpretation is consistent with the Exchange's 
authority under Section 17(f)(2) of the Act, as amended by the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010 (``Dodd-
Frank Act''),\8\ which requires, inter alia, that employees of 
exchanges be fingerprinted and that exchanges ``shall submit such 
fingerprints, or cause the same to be submitted, to the Attorney 
General of the United States for identification and appropriate 
processing.'' The Exchange further notes that the proposed 
interpretation is consistent with the rules and procedures at other 
self-regulatory organizations (``SROs'').\9\
---------------------------------------------------------------------------

    \8\ See 15 U.S.C. 17(f)(2) [sic]; Dodd-Frank Act Sect. 929S.
    \9\ See International Securities Exchange (``ISE'') Rule 1408; 
Chicago Board Options Exchange (``CBOE'') Rule 15.10. See generally 
Securities Exchange Act Release No. 71066 (December 12, 2013), 78 FR 
76667, 76668 n. 12 (December 18, 2013) (SR-ISE-2013-66) (noting that 
``[a]n FBI-approved Channel Partner simply helps expedite the 
delivery of Criminal History Summary information on behalf of the 
FBI'', and that the ``process for making a request through an FBI-
approved Channel Partner is consistent with FBI submission 
procedures'').
---------------------------------------------------------------------------

    The Exchange accordingly believes that under Rule 28 and applicable 
statutes, the Exchange has the authority to engage an FBI-approved 
Channel Partner for some or all of the fingerprinting processes 
described in the Rule. The Exchange believes that this proposed 
interpretation would ensure the Exchange's continued compliance with 
its Rules and applicable state and federal law.\10\
---------------------------------------------------------------------------

    \10\ Access to the FBI's fingerprint-based database of criminal 
records is permitted only when authorized by law. Section 17(f)(2) 
of the Act explicitly directs the Attorney General to provide SROs 
designated by the Commission (e.g., the Exchange) with access to 
such criminal history record information. Further, as amended by the 
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 
Section 17(f)(2) specifically requires, inter alia, that employees 
of national securities exchanges be fingerprinted. New York's 
General Business Law also requires SROs to fingerprint employees 
``as a condition of employment,'' as well as certain non-employee 
service providers. N.Y. Gen. Bus. Law Sec.  359-e (McKinney).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\11\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\12\ in particular, because it 
is designed to prevent fraudulent and manipulative acts and practices, 
promote just and equitable principles of trade, remove impediments to 
and perfect the mechanism of a free and open market and a national 
market system, and protect investors and the public interest. The 
Exchange believes that the proposed stated interpretation would enable 
the Exchange to continue to identify and exclude persons with felony or 
misdemeanor conviction

[[Page 71870]]

records that may pose a threat to the safety of Exchange personnel or 
the security of facilities and records, thereby enhancing business 
continuity, workplace safety and the security of the Exchange's 
operations and helping to protect investors and the public interest.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Continuing to run fingerprint-based background checks is imperative 
for the Exchange and its affiliates, as this process helps to identify 
persons with criminal history records who may pose a threat to the 
safety of Exchange personnel and/or the security of Exchange facilities 
and records. This identification and screening process thus enhances 
business continuity, workplace safety, and the security of the 
Exchange's operations. The use of an FBI-approved Channel Partner in 
some or all phases of this process is consistent with Rule 28 and 
applicable state and federal law, and in furtherance of the important 
objectives described herein. Additionally, the use of a Channel Partner 
is consistent with the fingerprinting method currently employed by 
other SROs.\13\ For all these reasons, the proposal is also designed to 
protect investors as well as the public interest.
---------------------------------------------------------------------------

    \13\ See note 9, supra.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change would 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The proposed rule change 
would enhance the security of the Exchange's facilities and records 
without adding any burden on market participants and allow the Exchange 
continued compliance with its fingerprinting rules and with Section 
17(f)(2) of the Act as amended by the Dodd-Frank Act.\14\
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    \14\ See Section 929S of the Dodd-Frank Act.
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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 foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \15\ and Rule 19b-4(f)(1) \16\ thereunder. The 
proposed rule change effects a change that constitutes a stated policy, 
practice or interpretation with respect to the meaning, administration, 
or enforcement of an existing rule.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission will institute proceedings 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2015-45 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2015-45. 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 Web site (http://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 Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between 10 a.m. and 3 
p.m. Copies of the filing will also be available for inspection and 
copying at the NYSE's principal office and on its Internet Web site at 
www.nyse.com. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-
NYSE-2015-45 and should be submitted on or before December 8, 2015.
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    \17\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-29228 Filed 11-16-15; 8:45 am]
 BILLING CODE 8011-01-P



                                                  71868                      Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Notices

                                                  B. Self-Regulatory Organization’s                       19b–4(f)(6)(iii) permits the Commission               Commission process and review your
                                                  Statement on Burden on Competition                      to designate a shorter time if such action            comments more efficiently, please use
                                                     In accordance with Section 6(b)(8) of                is consistent with the protection of                  only one method. The Commission will
                                                  the Act,10 the Exchange does not believe                investors and the public interest. The                post all comments on the Commission’s
                                                  that the proposed rule change will                      Exchange has asked the Commission to                  Internet Web site (http://www.sec.gov/
                                                  impose any burden on competition that                   waive the 30-day operative delay so that              rules/sro.shtml).
                                                  is not necessary or appropriate in                      the proposal may become operative                        Copies of the submission, all
                                                  furtherance of the purposes of the Act.                 upon filing. The Exchange notes that the              subsequent amendments, all written
                                                  As noted above, the NYSE BQT data                       NYSE BQT data feed has been the                       statements with respect to the proposed
                                                  feed represents aggregated and                          subject of prior rule filings and believes            rule change that are filed with the
                                                  consolidated information of six existing                that waiver of the 30-day operative                   Commission, and all written
                                                  market data feeds. Although NYSE                        delay will provide more transparency                  communications relating to the
                                                  MKT, the NYSE and NYSE Arca are the                     and consistency with respect to the                   proposed rule change between the
                                                  exclusive distributors of the six BBO                   description of the NYSE BQT data feed.                Commission and any person, other than
                                                  and Trades feeds from which certain                     Based on the foregoing, the Commission                those that may be withheld from the
                                                  data elements are taken to create the                   believes that the waiver of the operative             public in accordance with the
                                                  NYSE BQT data feed, the NYSE may not                    delay is appropriate and is consistent                provisions of 5 U.S.C. 552, will be
                                                  be the exclusive distributor of the                     with the protection of investors and the              available for Web site viewing and
                                                  aggregated and consolidated                             public interest.15 The Commission                     printing in the Commission’s Public
                                                  information that comprises the NYSE                     hereby grants the waiver and designates               Reference Section, 100 F Street NE.,
                                                  BQT data feed. Any other market data                    the proposal operative upon filing.                   Washington, DC 20549, on official
                                                  recipient of the six BBO and Trades                        At any time within 60 days of the                  business days between the hours of
                                                  feeds would be able, if they chose, to                  filing of such proposed rule change, the              10:00 a.m. and 3:00 p.m. Copies of the
                                                  create a data feed with the same                        Commission summarily may                              filing will also be available for
                                                  information as the NYSE BQT data feed                   temporarily suspend such rule change if               inspection and copying at the NYSE’s
                                                                                                          it appears to the Commission that such                principal office and on its Internet Web
                                                  and distribute it to their clients on a
                                                                                                          action is necessary or appropriate in the             site at www.nyse.com. All comments
                                                  level-playing field with respect to
                                                                                                          public interest, for the protection of                received will be posted without change;
                                                  latency and cost as compared to the
                                                                                                          investors, or otherwise in furtherance of             the Commission does not edit personal
                                                  NYSE’s product.11
                                                                                                          the purposes of the Act. If the                       identifying information from
                                                  C. Self-Regulatory Organization’s                       Commission takes such action, the                     submissions. You should submit only
                                                  Statement on Comments on the                            Commission shall institute proceedings                information that you wish to make
                                                  Proposed Rule Change Received From                      under Section 19(b)(2)(B) 16 of the Act to            available publicly. All submissions
                                                  Members, Participants, or Others                        determine whether the proposed rule                   should refer to File Number SR–
                                                    No written comments were solicited                    change should be approved or                          NYSEMKT–2015–92 and should be
                                                  or received with respect to the proposed                disapproved.                                          submitted on or before December 8,
                                                  rule change.                                                                                                  2015.
                                                                                                          IV. Solicitation of Comments
                                                                                                                                                                For the Commission, by the Division of
                                                  III. Date of Effectiveness of the                         Interested persons are invited to                   Trading and Markets, pursuant to delegated
                                                  Proposed Rule Change and Timing for                     submit written data, views, and                       authority.17
                                                  Commission Action                                       arguments concerning the foregoing,                   Robert W. Errett,
                                                     The Exchange has filed the proposed                  including whether the proposed rule                   Deputy Secretary.
                                                  rule change pursuant to Section                         change is consistent with the Act.
                                                                                                                                                                [FR Doc. 2015–29212 Filed 11–16–15; 8:45 am]
                                                  19(b)(3)(A)(iii) of the Act 12 and Rule                 Comments may be submitted by any of
                                                                                                                                                                BILLING CODE 8011–01–P
                                                  19b–4(f)(6) thereunder.13 Because the                   the following methods:
                                                  proposed rule change does not: (i)                      Electronic comments:
                                                  significantly affect the protection of                                                                        SECURITIES AND EXCHANGE
                                                  investors or the public interest; (ii)                    • Use the Commission’s Internet
                                                                                                                                                                COMMISSION
                                                  impose any significant burden on                        comment form (http://www.sec.gov/
                                                  competition; and (iii) become operative                 rules/sro.shtml); or                                  [Release No. 34–76422; File No. SR–NYSE–
                                                                                                            • Send an email to rule-comments@                   2015–45]
                                                  prior to 30 days from the date on which
                                                                                                          sec.gov. Please include File Number SR–
                                                  it was filed, or such shorter time as the                                                                     Self-Regulatory Organizations; New
                                                                                                          NYSEMKT–2015–92 on the subject line.
                                                  Commission may designate, if                                                                                  York Stock Exchange LLC; Notice of
                                                  consistent with the protection of                       Paper Comments                                        Filing and Immediate Effectiveness of
                                                  investors and the public interest, the                     • Send paper comments in triplicate                Proposed Rule Change Constituting a
                                                  proposed rule change has become                         to Brent J. Fields, Secretary, Securities             Stated Interpretation With Respect to
                                                  effective pursuant to Section 19(b)(3)(A)               and Exchange Commission, 100 F Street                 the Meaning, Administration, and
                                                  of the Act and Rule 19b–4(f)(6)(iii)                    NE., Washington, DC 20549–1090.                       Enforcement of Rule 28
                                                  thereunder.                                             All submissions should refer to File
                                                     A proposed rule change filed under                                                                         November 10, 2015.
                                                                                                          Number SR–NYSEMKT–2015–92. This                          Pursuant to Section 19(b)(1) 1 of the
                                                  Rule 19b–4(f)(6) 14 normally does not
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                                                                          file number should be included on the                 Securities Exchange Act of 1934 (the
                                                  become operative prior to 30 days after
                                                                                                          subject line if email is used. To help the            ‘‘Act’’) 2 and Rule 19b–4 thereunder,3
                                                  the date of the filing. However, Rule
                                                                                                             15 For purposes only of waiving the 30-day
                                                                                                                                                                notice is hereby given that October 28,
                                                    10 78 U.S.C. 78f(b)(8).                               operative delay, the Commission has also
                                                    11 See NYSE BQT Approval Order, supra note 4.                                                                 17 17 CFR 200.30–3(a)(12).
                                                                                                          considered the proposed rule’s impact on
                                                    12 15 U.S.C. 78s(b)(3)(A)(iii).                                                                               1 15 U.S.C. 78s(b)(1).
                                                                                                          efficiency, competition, and capital formation. See
                                                    13 17 CFR 240.19b–4(f)(6).                            15 U.S.C. 78c(f).                                       2 15 U.S.C. 78a.
                                                    14 17 CFR 240.19b–4(f)(6).                               16 15 U.S.C. 78s(b)(2)(B).                           3 17 CFR 240.19b–4.




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                                                                             Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Notices                                                       71869

                                                  2015, New York Stock Exchange LLC                       the United States or his or her designee                2010 (‘‘Dodd-Frank Act’’),8 which
                                                  (‘‘NYSE’’ or the ‘‘Exchange’’) filed with               (‘‘Attorney General’’) for identification               requires, inter alia, that employees of
                                                  the Securities and Exchange                             and processing; and receive criminal                    exchanges be fingerprinted and that
                                                  Commission (the ‘‘Commission’’) the                     history record information from the                     exchanges ‘‘shall submit such
                                                  proposed rule change as described in                    Attorney General for evaluation and use,                fingerprints, or cause the same to be
                                                  Items I and II below, which Items have                  in accordance with applicable law, in                   submitted, to the Attorney General of
                                                  been prepared by the self-regulatory                    enhancing the security of the facilities,               the United States for identification and
                                                  organization. The Commission is                         systems, data, and/or records of the                    appropriate processing.’’ The Exchange
                                                  publishing this notice to solicit                       Exchange and its principal subsidiaries.                further notes that the proposed
                                                  comments on the proposed rule change                       The Exchange utilizes a Live-Scan 5                  interpretation is consistent with the
                                                  from interested persons.                                electronic system to capture and                        rules and procedures at other self-
                                                                                                          transmit fingerprints directly to the                   regulatory organizations (‘‘SROs’’).9
                                                  I. Self-Regulatory Organization’s                                                                                  The Exchange accordingly believes
                                                  Statement of the Terms of Substance of                  Federal Bureau of Investigation (‘‘FBI’’),
                                                                                                          which maintains on behalf of the                        that under Rule 28 and applicable
                                                  the Proposed Rule Change                                                                                        statutes, the Exchange has the authority
                                                                                                          Attorney General a database of
                                                     The Exchange proposes to constitute                                                                          to engage an FBI-approved Channel
                                                                                                          fingerprint-based criminal history
                                                  a stated interpretation with respect to                                                                         Partner for some or all of the
                                                                                                          records. The capture and transmittal
                                                  the meaning, administration, and                                                                                fingerprinting processes described in
                                                                                                          function, and corresponding receipt of
                                                  enforcement of Rule 28. The proposed                                                                            the Rule. The Exchange believes that
                                                                                                          criminal history information from the
                                                  rule change is available on the                                                                                 this proposed interpretation would
                                                                                                          FBI, is handled directly by Exchange
                                                  Exchange’s Web site at www.nyse.com,                                                                            ensure the Exchange’s continued
                                                                                                          personnel. The Exchange intends to
                                                  at the principal office of the Exchange,                                                                        compliance with its Rules and
                                                                                                          engage an FBI-approved ‘‘Channel
                                                  and at the Commission’s Public                                                                                  applicable state and federal law.10
                                                                                                          Partner’’ 6 to maintain and operate, on
                                                  Reference Room.
                                                                                                          behalf of the Exchange, a Live-Scan and/                2. Statutory Basis
                                                  II. Self-Regulatory Organization’s                      or other electronic system(s) for the                      The Exchange believes that the
                                                  Statement of the Purpose of, and                        submission of fingerprints to the FBI; to               proposed rule change is consistent with
                                                  Statutory Basis for, the Proposed Rule                  receive and maintain criminal history                   Section 6(b) of the Act,11 in general, and
                                                  Change                                                  record information from the FBI; and to                 furthers the objectives of Section 6(b)(5)
                                                     In its filing with the Commission, the               disseminate such information, through                   of the Act,12 in particular, because it is
                                                  self-regulatory organization included                   secure systems, to a limited set of                     designed to prevent fraudulent and
                                                  statements concerning the purpose of,                   approved reviewing officials within the                 manipulative acts and practices,
                                                  and basis for, the proposed rule change                 Exchange and its affiliates. The                        promote just and equitable principles of
                                                  and discussed any comments it received                  Exchange believes Rule 28 allows for                    trade, remove impediments to and
                                                  on the proposed rule change. The text                   the retention of a Channel Partner for                  perfect the mechanism of a free and
                                                  of those statements may be examined at                  these purposes.7                                        open market and a national market
                                                  the places specified in Item IV below.                     The foregoing interpretation is                      system, and protect investors and the
                                                  The Exchange has prepared summaries,                    consistent with the Exchange’s authority                public interest. The Exchange believes
                                                  set forth in sections A, B, and C below,                under Section 17(f)(2) of the Act, as                   that the proposed stated interpretation
                                                  of the most significant parts of such                   amended by the Dodd-Frank Wall Street                   would enable the Exchange to continue
                                                  statements.                                             Reform and Consumer Protection Act of                   to identify and exclude persons with
                                                                                                                                                                  felony or misdemeanor conviction
                                                  A. Self-Regulatory Organization’s                          5 Live-Scan refers to the process of capturing
                                                  Statement of the Purpose of, and the                    fingerprints directly into a digitized format as           8 See 15 U.S.C. 17(f)(2) [sic]; Dodd-Frank Act Sect.
                                                  Statutory Basis for, the Proposed Rule                  opposed to traditional ink and paper methods. Live-     929S.
                                                  Change                                                  Scan technology captures and transfers images to a         9 See International Securities Exchange (‘‘ISE’’)
                                                                                                          central location and/or interface for identification    Rule 1408; Chicago Board Options Exchange
                                                  1. Purpose                                              processing. The Exchange has used Live-Scan             (‘‘CBOE’’) Rule 15.10. See generally Securities
                                                                                                          technology for fingerprinting since Rule 28 was         Exchange Act Release No. 71066 (December 12,
                                                     The Exchange proposes a rule change                  approved in 2003.                                       2013), 78 FR 76667, 76668 n. 12 (December 18,
                                                  that constitutes a stated interpretation                   6 FBI-approved Channel Partners receive the          2013) (SR–ISE–2013–66) (noting that ‘‘[a]n FBI-
                                                  with respect to the meaning,                            fingerprint submission and relevant data, collect the   approved Channel Partner simply helps expedite
                                                  administration, and enforcement of Rule                 associated fee(s), electronically forward the           the delivery of Criminal History Summary
                                                                                                          fingerprint submission with the necessary               information on behalf of the FBI’’, and that the
                                                  28 (‘‘Rule 28’’). The Exchange is not                   information to the FBI Criminal Justice Information     ‘‘process for making a request through an FBI-
                                                  proposing any changes to the text of the                Services Division (‘‘CJIS’’) for a national Criminal    approved Channel Partner is consistent with FBI
                                                  current version of Rule 28.                             History Summary check, and receive the electronic       submission procedures’’).
                                                     Approved in 2003,4 Rule 28 describes                 summary check result for dissemination to the              10 Access to the FBI’s fingerprint-based database

                                                                                                          authorized employer entity. See Securities              of criminal records is permitted only when
                                                  and provides the basis for the                          Exchange Act Release No. 71066 (December 12,            authorized by law. Section 17(f)(2) of the Act
                                                  Exchange’s practice of conducting                       2013), 78 FR 76667 (December 18, 2013) (SR–ISE–         explicitly directs the Attorney General to provide
                                                  fingerprint-based criminal record                       2013–66).                                               SROs designated by the Commission (e.g., the
                                                  checks. The Rule permits the Exchange                      7 Rule 28 allows the Exchange to obtain              Exchange) with access to such criminal history
                                                                                                          fingerprints from service providers, including          record information. Further, as amended by the
                                                  to obtain fingerprints of prospective and                                                                       Dodd-Frank Wall Street Reform and Consumer
                                                                                                          employees of affiliates of the Exchange. See Chicago
                                                  current employees, temporary                            Board Options Exchange, Incorporated (‘‘CBOE’’)         Protection Act of 2010, Section 17(f)(2) specifically
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                                                  personnel, independent contractors and                  Rule 15.10; Securities Exchange Act Release No.         requires, inter alia, that employees of national
                                                  service providers of the Exchange and                   69496 (May 2, 2013), 78 FR 26671, 26671 (May 7,         securities exchanges be fingerprinted. New York’s
                                                                                                          2013) (SR–CBOE–2013–044) (CBOE conducts                 General Business Law also requires SROs to
                                                  its principal subsidiaries; submit those                                                                        fingerprint employees ‘‘as a condition of
                                                                                                          fingerprint-based criminal record checks of
                                                  fingerprints to the Attorney General of                 directors, officers and employees as well as,           employment,’’ as well as certain non-employee
                                                                                                          without limitation, ‘‘temporary personnel,              service providers. N.Y. Gen. Bus. Law § 359-e
                                                     4 See Securities Exchange Act Release No. 4811       independent contractors, consultants, vendors and       (McKinney).
                                                                                                                                                                     11 15 U.S.C. 78f(b).
                                                  (July 1, 2003), 68 FR 41033 (July 9, 2003) (SR–         service providers . . . who have or are anticipated
                                                  NYSE–2003–18).                                          to have access to facilities and records.’’).              12 15 U.S.C. 78f(b)(5).




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                                                  71870                      Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Notices

                                                  records that may pose a threat to the                   policy, practice or interpretation with               Internet Web site at www.nyse.com. All
                                                  safety of Exchange personnel or the                     respect to the meaning, administration,               comments received will be posted
                                                  security of facilities and records,                     or enforcement of an existing rule.                   without change; the Commission does
                                                  thereby enhancing business continuity,                     At any time within 60 days of the                  not edit personal identifying
                                                  workplace safety and the security of the                filing of the proposed rule change, the               information from submissions. You
                                                  Exchange’s operations and helping to                    Commission summarily may                              should submit only information that
                                                  protect investors and the public interest.              temporarily suspend such rule change if               you wish to make available publicly. All
                                                     Continuing to run fingerprint-based                  it appears to the Commission that such                submissions should refer to File
                                                  background checks is imperative for the                 action is necessary or appropriate in the             Number SR–NYSE–2015–45 and should
                                                  Exchange and its affiliates, as this                    public interest, for the protection of                be submitted on or before December 8,
                                                  process helps to identify persons with                  investors, or otherwise in furtherance of             2015.
                                                  criminal history records who may pose                   the purposes of the Act. If the
                                                                                                                                                                  For the Commission, by the Division of
                                                  a threat to the safety of Exchange                      Commission takes such action, the                     Trading and Markets, pursuant to delegated
                                                  personnel and/or the security of                        Commission will institute proceedings                 authority.17
                                                  Exchange facilities and records. This                   to determine whether the proposed rule                Robert W. Errett,
                                                  identification and screening process                    change should be approved or
                                                                                                                                                                Deputy Secretary.
                                                  thus enhances business continuity,                      disapproved.
                                                                                                                                                                [FR Doc. 2015–29228 Filed 11–16–15; 8:45 am]
                                                  workplace safety, and the security of the               IV. Solicitation of Comments                          BILLING CODE 8011–01–P
                                                  Exchange’s operations. The use of an
                                                  FBI-approved Channel Partner in some                      Interested persons are invited to
                                                  or all phases of this process is consistent             submit written data, views, and
                                                                                                          arguments concerning the foregoing,                   SECURITIES AND EXCHANGE
                                                  with Rule 28 and applicable state and                                                                         COMMISSION
                                                  federal law, and in furtherance of the                  including whether the proposed rule
                                                  important objectives described herein.                  change is consistent with the Act.
                                                                                                          Comments may be submitted by any of                   Sunshine Act Meeting
                                                  Additionally, the use of a Channel
                                                  Partner is consistent with the                          the following methods:                                  Notice is hereby given, pursuant to
                                                  fingerprinting method currently                         Electronic Comments                                   the provisions of the Government in the
                                                  employed by other SROs.13 For all these                                                                       Sunshine Act, Public Law 94–409, that
                                                                                                            • Use the Commission’s Internet
                                                  reasons, the proposal is also designed to                                                                     the Securities and Exchange
                                                                                                          comment form (http://www.sec.gov/
                                                  protect investors as well as the public                                                                       Commission will hold a Closed Meeting
                                                                                                          rules/sro.shtml); or
                                                  interest.                                                 • Send an email to rule-comments@                   on Thursday, November 19, 2015 at 4
                                                                                                          sec.gov. Please include File Number SR–               p.m.
                                                  B. Self-Regulatory Organization’s
                                                                                                          NYSE–2015–45 on the subject line.                       Commissioners, Counsel to the
                                                  Statement on Burden on Competition
                                                                                                                                                                Commissioners, the Secretary to the
                                                     The Exchange does not believe that                   Paper Comments                                        Commission, and recording secretaries
                                                  the proposed rule change would impose                     • Send paper comments in triplicate                 will attend the Closed Meeting. Certain
                                                  any burden on competition that is not                   to Brent J. Fields, Secretary, Securities             staff members who have an interest in
                                                  necessary or appropriate in furtherance                 and Exchange Commission, 100 F Street                 the matters also may be present.
                                                  of the purposes of the Act. The                         NE., Washington, DC 20549–1090.                         The General Counsel of the
                                                  proposed rule change would enhance                      All submissions should refer to File                  Commission, or her designee, has
                                                  the security of the Exchange’s facilities               Number SR–NYSE–2015–45. This file                     certified that, in her opinion, one or
                                                  and records without adding any burden                   number should be included on the                      more of the exemptions set forth in 5
                                                  on market participants and allow the                    subject line if email is used. To help the            U.S.C. 552b(c)(3), (5), (7), 9(B) and (10)
                                                  Exchange continued compliance with                      Commission process and review your                    and 17 CFR 200.402(a)(3), (5), (7), 9(ii)
                                                  its fingerprinting rules and with Section               comments more efficiently, please use                 and (10), permit consideration of the
                                                  17(f)(2) of the Act as amended by the                   only one method. The Commission will                  scheduled matter at the Closed Meeting.
                                                  Dodd-Frank Act.14                                       post all comments on the Commission’s                   Commissioner Stein, as duty officer,
                                                  C. Self-Regulatory Organization’s                       Internet Web site (http://www.sec.gov/                voted to consider the items listed for the
                                                  Statement on Comments on the                            rules/sro.shtml). Copies of the                       Closed Meeting in closed session.
                                                  Proposed Rule Change Received From                      submission, all subsequent                              The subject matter of the Closed
                                                  Members, Participants, or Others                        amendments, all written statements                    Meeting will be:
                                                                                                          with respect to the proposed rule                       Institution and settlement of
                                                    No written comments were solicited
                                                                                                          change that are filed with the                        injunctive actions;
                                                  or received with respect to the proposed
                                                                                                          Commission, and all written
                                                  rule change.                                                                                                    Institution and settlement of
                                                                                                          communications relating to the
                                                                                                                                                                administrative proceedings; and
                                                  III. Date of Effectiveness of the                       proposed rule change between the
                                                  Proposed Rule Change and Timing for                     Commission and any person, other than                   Other matters relating to enforcement
                                                  Commission Action                                       those that may be withheld from the                   proceedings.
                                                                                                          public in accordance with the                           At times, changes in Commission
                                                     The foregoing rule change has become                                                                       priorities require alterations in the
                                                  effective pursuant to Section 19(b)(3)(A)               provisions of 5 U.S.C. 552, will be
                                                                                                                                                                scheduling of meeting items.
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                                                  of the Act 15 and Rule 19b–4(f)(1) 16                   available for Web site viewing and
                                                  thereunder. The proposed rule change                    printing in the Commission’s Public                     For further information and to
                                                  effects a change that constitutes a stated              Reference Room, 100 F Street NE.,                     ascertain what, if any, matters have been
                                                                                                          Washington, DC 20549 on official                      added, deleted or postponed, please
                                                    13 See note 9, supra.                                 business days between 10 a.m. and 3                   contact the Office of the Secretary at
                                                    14 See Section 929S of the Dodd-Frank Act.            p.m. Copies of the filing will also be                (202) 551–5400.
                                                    15 15 U.S.C. 78s(b)(3)(A).                            available for inspection and copying at
                                                    16 17 CFR 240.19b–4(f)(6).                            the NYSE’s principal office and on its                  17 17   CFR 200.30–3(a)(12).



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Document Created: 2015-12-14 14:00:04
Document Modified: 2015-12-14 14:00:04
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation80 FR 71868 

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