82_FR_18122 82 FR 18051 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Amending the Certificate of Incorporation and Bylaws of Its Ultimate Parent Company, Intercontinental Exchange, Inc.

82 FR 18051 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Amending the Certificate of Incorporation and Bylaws of Its Ultimate Parent Company, Intercontinental Exchange, Inc.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 71 (April 14, 2017)

Page Range18051-18058
FR Document2017-07532

Federal Register, Volume 82 Issue 71 (Friday, April 14, 2017)
[Federal Register Volume 82, Number 71 (Friday, April 14, 2017)]
[Notices]
[Pages 18051-18058]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07532]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80419; File No. SR-NYSEMKT-2017-17]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of 
Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Amending 
the Certificate of Incorporation and Bylaws of Its Ultimate Parent 
Company, Intercontinental Exchange, Inc.

April 10, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on March 28, 2017, NYSE MKT LLC (the ``Exchange'' or ``NYSE 
MKT'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. On April 6,

[[Page 18052]]

2017, the Exchange filed Amendment No. 1 to the proposal.\4\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as modified by Amendment No. 1, 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.
    \4\ Amendment No. 1 clarifies that ICE is a public company 
listed on the NYSE and that the word ``indirect'' is proposed to be 
deleted from clause (iii)(y) of the first sentence of Section 
2.13(b) of ICE's bylaws.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the certificate of incorporation and 
bylaws of its ultimate parent company, Intercontinental Exchange, Inc. 
(``ICE''), to (1) update and streamline references to ICE subsidiaries 
that either are or control national securities exchanges and delete 
references to other subsidiaries of ICE; (2) eliminate an obsolete 
cross-reference in ICE's certificate of incorporation to its bylaws and 
make a technical correction to a cross-reference within the bylaws; (3) 
make certain simplifying or clarifying changes in ICE's bylaws relating 
to the location of stockholder meetings, quorum requirements, and 
requirements applicable to persons entitled to nominate directors or 
make proposals at a meeting of ICE's stockholders; and (4) replace 
obsolete references in the bylaws to the Vice Chair with references to 
the lead independent director. 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 to amend ICE's Third Amended and Restated 
Certificate of Incorporation (the ``ICE Certificate'') and Seventh 
Amended and Restated Bylaws (the ``ICE Bylaws'') to (1) update and 
streamline references to ICE subsidiaries that either are or control 
national securities exchanges and delete references to other 
subsidiaries of ICE; (2) eliminate an obsolete cross-reference in the 
ICE Certificate to the ICE Bylaws and make a technical correction to a 
cross-reference within the ICE Bylaws; (3) make certain simplifying or 
clarifying changes in the ICE Bylaws relating to the location of 
stockholder meetings, quorum requirements, and requirements applicable 
to persons entitled to nominate directors or make proposals at a 
meeting of ICE's stockholders; and (4) replace obsolete references in 
the ICE Bylaws to the Vice Chair with references to the lead 
independent director.
    ICE owns 100% of the equity interest in Intercontinental Exchange 
Holdings, Inc. (``ICE Holdings''), which in turn owns 100% of the 
equity interest in NYSE Holdings LLC (``NYSE Holdings''). NYSE Holdings 
owns 100% of the equity interest of NYSE Group, Inc. (``NYSE Group''), 
which in turn directly owns 100% of the equity interest of the Exchange 
and its national securities exchange affiliates, the New York Stock 
Exchange LLC (``NYSE''), NYSE Arca, Inc. (``NYSE Arca'') and NYSE 
National, Inc. (``NYSE National'').\5\
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    \5\ ICE is a publicly traded company listed on the NYSE. The 
Exchange's affiliates NYSE, NYSE Arca, and NYSE National have each 
submitted substantially the same proposed rule change to propose the 
changes described herein. See SR-NYSE-2017-13, SR-NYSEArca-2017-29, 
and SR-NYSENAT-2017-01.
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ICE Certificate
    The Exchange proposes to amend the limitations on voting and 
ownership in Article V of the ICE Certificate to update and streamline 
references to ICE subsidiaries that are national securities exchanges 
or that control national securities exchanges, as well as to delete 
references to other subsidiaries of ICE. In addition, it proposes to 
revise the amendment provision in Article X of the ICE Certificate to 
remove an obsolete reference.
Limitations on Voting and Ownership
    Article V of the ICE Certificate establishes voting limitations and 
ownership concentration limitations on owners of ICE common stock above 
certain thresholds for so long as ICE owns any U.S. Regulated 
Subsidiary. By reference to the ICE Bylaws, ``U.S. Regulated 
Subsidiaries'' is defined to mean the four national securities 
exchanges owned by ICE (the Exchange, NYSE, NYSE Arca, and NYSE 
National), NYSE Arca, LLC, and NYSE Arca Equities, Inc. (``NYSE Arca 
Equities''), or their successors, in each case to the extent that such 
entities continue to be controlled, directly or indirectly, by ICE.\6\
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    \6\ ICE Certificate, Article V, Section A.10; ICE Bylaws, 
Article III, Section 3.15. NYSE Arca, LLC, is a subsidiary of NYSE 
Group, and NYSE Arca Equities is a subsidiary of NYSE Arca.
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    Article V of the ICE Certificate also authorizes ICE's Board of 
Directors to grant exceptions to the voting and ownership concentration 
limitations if the Board of Directors makes certain determinations. 
Those include determinations that such an exception would not impair 
the ability of ICE, the U.S. Regulated Subsidiaries, ICE Holdings, NYSE 
Holdings, and NYSE Group to perform their respective responsibilities 
under the Exchange Act and the rules and regulations thereunder, and 
that such an exception is otherwise in the best interests of ICE, its 
stockholders and the U.S. Regulated Subsidiaries.
    NYSE MKT proposes to amend Article V to replace references to the 
U.S. Regulated Subsidiaries with references to the ``Exchanges.'' An 
``Exchange'' would be defined as a national securities exchange 
registered under Section 6 of the Exchange Act \7\ that is directly or 
indirectly controlled by ICE.\8\ Accordingly, Article V would no longer 
include references to NYSE Arca, LLC or NYSE Arca Equities. NYSE MKT 
believes omitting such entities is appropriate because the Exchange Act 
definition of ``exchange'' states that ``exchange'' ``includes the 
market place and the market facilities maintained by such exchange.'' 
\9\ In addition, NYSE Arca, as the national securities exchange, has 
the regulatory and self-regulatory responsibility for the NYSE Arca 
options and equities markets.\10\ Moreover, the proposed change would 
align Article V with voting and ownership concentration limits in the 
certificates of incorporation of other publicly traded companies that 
own one or more national securities exchanges,

[[Page 18053]]

which do not include references to subsidiaries other than national 
securities exchanges.\11\
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    \7\ 15 U.S.C. 78f.
    \8\ See proposed Fourth Amended and Restated Certificate of 
Incorporation of Intercontinental Exchange, Inc. (``Proposed ICE 
Certificate''), Article V, Section A.3(a).
    \9\ 15 U.S.C. 78c(a)(1).
    \10\ See NYSE Arca Equities Rule 3.4 (``The NYSE Arca, Inc. 
(`NYSE Arca Parent'), as a self-regulatory organization registered 
with the Securities and Exchange Commission pursuant to Section 6 of 
the Exchange Act, shall have ultimate responsibility in the 
administration and enforcement of rules governing the operation of 
its subsidiary, NYSE Arca Equities, Inc. (`Corporation')''). See 
also NYSE Arca Equities Rule 14.1.
    \11\ See Second Amended and Restated Certificate of 
Incorporation of CBOE Holdings, Inc. (``CBOE Certificate''), Article 
Sixth, Sections (a)(ii)(A) and (b)(ii)(A) (referencing ``Regulated 
Securities Exchange Subsidiaries''); and Amended and Restated 
Certificate of Incorporation of Bats Global Markets, Inc. (``Bats 
Certificate''), Article Fifth, Section (b)(i) and (ii) (referencing 
``Exchanges'').
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    As noted above, Article V of the ICE Certificate authorizes ICE's 
Board of Directors to grant exceptions to the voting and ownership 
concentration limitations if it makes certain determinations. Such 
determinations include that the proposed exception would not impair the 
ability of ICE Holdings, NYSE Holdings and NYSE Group to perform their 
respective responsibilities under the Exchange Act and the rules and 
regulations thereunder.\12\ NYSE MKT proposes to amend Article V to 
replace the references to ICE Holdings, NYSE Holdings and NYSE Group 
with the defined term ``Intermediate Holding Companies.''
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    \12\ ICE Certificate, Article V, Sections A.3(a)(i) and 
B.3(a)(i).
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    Finally, Article V includes lengthy provisions listing the 
different categories of members and permit holders of each of the NYSE, 
NYSE MKT and NYSE Arca.\13\ NYSE MKT proposes to use a new defined 
term, ``Member,'' to mean a person that is a ``member'' of an Exchange 
within the meaning of Section 3(a)(3)(A) of the Exchange Act.\14\ NYSE 
MKT believes that using ``Member'' in place of the list of categories 
of members and permit holders would simplify the provisions and avoid 
Exchange-by-Exchange descriptions without substantive change. Each of 
the categories listed--an ETP Holder of NYSE Arca Equities (as defined 
in the NYSE Arca Equities rules of NYSE Arca); an OTP Holder or OTP 
Firm of NYSE Arca (each as defined in the rules of NYSE Arca); a 
``member'' or ``member organization'' of NYSE (as defined in the rules 
of the NYSE) and NYSE MKT \15\--is a ``member'' of an exchange within 
the meaning of Section 3(a)(3)(A) of the Exchange Act.\16\
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    \13\ See ICE Certificate, Article V, Section A.3(c)(ii) and 
(d)(ii) and Section A.9.
    \14\ 15 U.S.C. 78c(a)(3)(A).
    \15\ See id.
    \16\ 15 U.S.C. 78c(a)(3)(A).
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    More specifically, the revised ICE Certificate would require, in 
the case of a person seeking approval to exercise voting rights in 
excess of 20% of the outstanding votes, that neither such person nor 
any of its related persons be a Member of an Exchange, instead of 
referring to the different categories of membership recognized by each 
Exchange.\17\ Similarly, the conditions relating to a person seeking 
approval to exceed the ownership concentration limitation would be 
rephrased in the same way.\18\ Use of ``Member'' would permit a 
simplification, without substantive change, of the portion of the 
definition of the term ``Related Persons'' relating to members and 
trading permit holders.\19\
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    \17\ See Proposed ICE Certificate, Article V, Section A.3(c)(ii) 
and (d)(ii).
    \18\ See Proposed ICE Certificate, Article V, Section B.3(d).
    \19\ See Proposed ICE Certificate, Article V, Section A.10. For 
the current definition of ``Related Persons,'' see ICE Certificate, 
Article V, Section A.9.
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    NYSE MKT believes that the use of ``Member'' and the changes to 
remove the Exchange-by-Exchange lists of categories of Members would be 
appropriate because it would align the provision in the ICE Certificate 
with voting and ownership concentration limits in the certificates of 
incorporation of other publicly traded companies that own one or more 
national securities exchanges, which use a similar description of 
membership.\20\
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    \20\ See Bats Certificate, Article Fifth, Sections (a)(ii)(D) 
and (E) (defining an ``Exchange Member'' as ``a Person that is a 
registered broker or dealer that has been admitted to membership in 
any national securities exchange registered under Section 6 of the 
Act with the Securities and Exchange Commission . . . that is a 
direct or indirect subsidiary of'' Bats Global Markets, Inc.); and 
CBOE Certificate, Article Sixth, Sections (a)(ii)(C)(y) and 
(b)(ii)(D) (defining a ``Trading Permit Holder'' ``as defined in the 
Bylaws of any Regulated Securities Exchange Subsidiary as they may 
be amended from time to time'').
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    To implement the proposed changes, NYSE MKT proposes the following 
amendments to Article V of the ICE Certificate:
     In Article V, Section A.1, the text ``any U.S. Regulated 
Subsidiary (as defined below)'' would be replaced with ``a national 
securities exchange registered under Section 6 of the Securities 
Exchange Act of 1934, as amended (the `Exchange Act').''
     In Article V, Section A.2, the text ``Securities Exchange 
Act of 1934, as amended (the `Exchange Act'),'' would be replaced with 
``Exchange Act.''
     In Article V, Section A.3(a), the text ``U.S. Regulated 
Subsidiary'' would be replaced with the text ``national securities 
exchange registered under Section 6 of the Exchange Act that is 
directly or indirectly controlled by the Corporation (each such 
national securities exchange so controlled, an `Exchange'), any entity 
controlled by the Corporation that is not itself an Exchange but that 
directly or indirectly controls an Exchange (each such controlling 
entity, an `Intermediate Holding Company') or''; the text ``, 
Intercontinental Exchange Holdings, Inc. (`ICE Holdings'), NYSE 
Holdings LLC (`NYSE Holdings') or NYSE Group, Inc. (`NYSE Group') (if 
and to the extent that NYSE Group continues to exist as a separate 
entity)'' would be deleted; and ``the U.S. Regulated Subsidiaries'' 
would be replaced with ``each Exchange.''
     In Article V, Section A.3(c), ``and'' would be added 
between (i) and (ii); the text ``NYSE Arca, Inc. (`NYSE Arca') or NYSE 
Arca Equities, Inc. (`NYSE Arca Equities') or any facility of NYSE 
Arca'' would be replaced with ``one or more Exchanges''; and the text 
``a Member (as defined below) of any Exchange'' would replace the text 
from ``an ETP Holder (as defined in the NYSE Arca Equities rules of 
NYSE Arca'' through the end of the paragraph.
     In Article V, Section A.3(d), ``and'' would be added 
between (i) and (ii); the text ``NYSE Arca or NYSE Arca Equities or any 
facility of NYSE Arca'' would be replaced with ``one or more 
Exchanges''; and the text ``a Member of any Exchange'' would replace 
the text from ``an ETP Holder'' through the end of the paragraph.
     The definition of ``Member'' would be added as new Article 
V, Section A.8, defined to ``mean a Person that is a `member' of an 
Exchange within the meaning of Section 3(a)(3)(A) of the Exchange 
Act.'' Article V, Sections A.8 and A.9 would be renumbered as Sections 
A.9 and A.10, respectively.
     In Article V, Section A.9 (which would be renumbered 
A.10), the definition of the term ``Related Person'' would be 
simplified to eliminate the Exchange-by-Exchange definition, as 
follows:
     In Section A.10(d), the text `` `member organization' (as 
defined in the rules of New York Stock Exchange, as such rules may be 
in effect from time to time), any `member' (as defined in the rules of 
New York Stock Exchange, as such rules may be in effect from time to 
time)'' would be replaced with ``Member, any Person'';
     In Section A.10(e), the text ``an OTP Firm, any OTP Holder 
that is associated with such Person'' would be replaced with ``natural 
person and is a Member, any broker or dealer that is also a Member with 
which such Person is associated'';
     ``and'' would be added between Sections A.10(g) and (h); 
and
     Sections A.10(i) through (l) would be deleted.
     The definition of ``U.S. Regulated Subsidiary'' and ``U.S. 
Regulated Subsidiaries'' in Article V, Section A.10 would be deleted.

[[Page 18054]]

     In Article V, Section B.1, the term ``Exchange'' would 
replace the term ``U.S. Regulated Subsidiary.''
     In Article V, Section B.3(a), the text ``Exchange, 
Intermediate Holding Company or'' would replace the text ``U.S. 
Regulated Subsidiaries,''; the text ``ICE Holdings, NYSE Holdings or 
NYSE Group (if and to the extent that NYSE Group continues to exist as 
a separate entity)'' would be deleted; and ``each Exchange'' would 
replace ``the U.S. Regulated Subsidiaries.''
     In Article V, Section B.3(d), the text ``NYSE Arca or NYSE 
Arca Equities or any facility of NYSE Arca'' would be replaced with 
``any Exchange''; and the text ``an ETP Holder'' through the end of the 
paragraph would be replaced with ``a Member of any Exchange.''
     The word ``and'' would be added between Article V, Section 
B.3(c) and (d); and Article V, Section B.3(e) and (f) would be deleted.
Amendments
    In addition to the amendments to Article V, NYSE MKT proposes to 
amend Article X (Amendments) of the ICE Certificate.
    Clause (A) of Article X requires the vote of 80% of all outstanding 
shares entitled to vote in order to reduce the voting requirement set 
forth in Section 11.2(b) of the ICE Bylaws. However, Section 11.2(b) of 
the ICE Bylaws was deleted in 2015 after the sale by ICE of the 
Euronext business.\21\ Accordingly, NYSE MKT proposes to delete the 
requirement.
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    \21\ See Securities Exchange Act Release No. 74930 (May 12, 
2015), 80 FR 28315 (May 18, 2015) (SR-NYSEMKT-2015-32).
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    Clause (B) of Article X currently requires that, so long as ICE 
controls any of the U.S. Regulated Subsidiaries, any proposed amendment 
or repeal of any provision of the ICE Certificate must be submitted to 
the boards of the NYSE, NYSE Market, NYSE Regulation, NYSE Arca, NYSE 
Arca Equities, and NYSE MKT for a determination as to whether such 
amendment or repeal must be filed with the Commission under Section 19 
of the Exchange Act.\22\ NYSE MKT proposes that, in Clause (B) of 
Article X, the text ``of the U.S. Regulated Subsidiaries'' would be 
replaced with ``Exchange''; and ``New York Stock Exchange, NYSE Market, 
NYSE Regulation, Inc., NYSE Arca, NYSE Arca Equities and NYSE MKT'' 
would be replaced with ``each Exchange.'' NYSE MKT believes that the 
use of ``Exchange'' is appropriate for the reasons discussed above.
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    \22\ 15 U.S.C. 78s.
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Additional Changes
    The ICE Certificate includes references to NYSE Market (DE), Inc., 
defined as ``NYSE Market,'' and NYSE Regulation, Inc. (``NYSE 
Regulation''). NYSE Market and NYSE Regulation were previously parties 
to a Delegation Agreement whereby the NYSE delegated certain regulatory 
functions to NYSE Regulation and certain market functions to NYSE 
Market. The Delegation Agreement was terminated when the NYSE re-
integrated its regulatory and market functions. As a result, the two 
entities ceased being regulated subsidiaries.\23\ NYSE Regulation was 
subsequently merged out of existence. The proposed changes described 
above would delete all references to NYSE Market and NYSE Regulation 
from the ICE Certificate.\24\
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    \23\ See Securities Exchange Act Release No. 75991 (September 
28, 2015), 80 FR 59837 (October 2, 2015 (SR-NYSE-2015-27).
    \24\ See ICE Certificate Article V, Sections A.3(c)(iii) and 
(d)(iii) and Section B.3(e), and Article X, clause (B).
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    Finally, conforming changes would be made to the title, recitals 
and signature line of the ICE Certificate.
ICE Bylaws
    The Exchange proposes to make certain amendments to the ICE Bylaws 
to correspond to the proposed amendments to the ICE Certificate. In 
addition, the Exchange proposes to amend the ICE Bylaws to make certain 
changes relating to the location of stockholder meetings, quorum 
requirements, and requirements applicable to persons entitled to 
nominate directors or make proposals at a meeting of ICE's 
stockholders. Finally, it proposes to replace obsolete references to 
the Vice Chair with references to the lead independent director.
Changes Corresponding to the Proposed Amendments to the ICE Certificate
    The Exchange proposes to make changes to the ICE Bylaws 
corresponding to the proposed amendments to the ICE Certificate, as 
described above.
    First, NYSE MKT proposes to use ``Exchanges'' in place of ``U.S. 
Regulated Subsidiaries,'' as in the proposed changes to the ICE 
Certificate. Accordingly, it proposes to make the following changes:
     The definition of ``U.S. Regulated Subsidiary'' in Section 
3.15 would be deleted and replaced with a definition of ``Exchange'' 
that is the same as the definition in the proposed amended ICE 
Certificate.
     In Section 3.14(a)(2), the text ``U.S. Regulated 
Subsidiaries, NYSE Group, Inc. (``NYSE Group'') (if and to the extent 
that NYSE Group continues to exist as a separate entity), NYSE Holdings 
LLC (``NYSE Holdings''), Intercontinental Exchange Holdings, Inc. (`ICE 
Holdings')'' would be replaced with ``Exchanges, any entity controlled 
by the Corporation that is not itself an Exchange but that directly or 
indirectly controls an Exchange (each such controlling entity, an 
`Intermediate Holding Company')''; and the text ``U.S. Regulated 
Subsidiaries, NYSE Group (if and to the extent that NYSE Group 
continues to exist as a separate entity), NYSE Holdings, ICE Holdings'' 
would be replaced with ``Exchanges, Intermediate Holding Companies.''
     In Section 3.14(b)(3), the text ``the U.S. Regulated 
Subsidiaries'' and ``their'' would be replaced with ``each Exchange'' 
and ``its,'' respectively.
     In Article VII, ``the U.S. Regulated Subsidiaries'' would 
be replaced with ``any Exchange.''
     In Sections 3.14(a)(1), 8.1, 8.2, 8.3(b), 8.4, 9.1, 9.2, 
9.3 and 11.3, the text ``U.S. Regulated Subsidiary'' and ``of the U.S. 
Regulated Subsidiaries'' would be replaced with ``Exchange'' and the 
text ``U.S. Regulated Subsidiaries'' would be replaced with 
``Exchanges.''
     In Sections 8.2(b), 8.4, 9.1, and 9.3, the text ``the U.S. 
Regulated Subsidiaries'' and ``U.S. Regulated Subsidiaries'' would be 
replaced with ``an Exchange.''
     In Section 9.3, the text ``the U.S. Regulated 
Subsidiaries'' would be replaced with ``each Exchange''; ``U.S. 
Regulated Subsidiary's'' would be replaced with ``Exchange's''; and 
``their respective'' would be replaced with ``its.''
     In Section 8.1, the text ``New York Stock Exchange LLC, 
NYSE Arca, Inc., NYSE Arca Equities, Inc., NYSE MKT LLC and NYSE 
National, Inc. or their successors'' would be replaced with ``any 
Exchange.'' Similarly, in Section 11.3, the text ``New York Stock 
Exchange LLC, NYSE Arca, Inc., NYSE Arca Equities, Inc., NYSE MKT LLC 
and NYSE National, Inc. or the boards of directors of their 
successors'' would be replaced with ``each Exchange.''
     In Sections 8.1 and 8.2, the defined term ``U.S. 
Subsidiaries' Confidential Information'' would be replaced with 
``Exchange Confidential Information,'' with the same meaning except 
limited to Exchanges.
     In Section 8.3(b), the text ``U.S. Regulated Subsidiary or 
any other U.S. Regulated Subsidiary over which such U.S. Regulated 
Subsidiary has regulatory authority or oversight'' would

[[Page 18055]]

be replaced with ``Exchange.'' The proposed change would remove the 
current provision that allows any U.S. Regulated Subsidiary to inspect 
the books and records of another U.S. Regulated Subsidiary over which 
the first has regulatory authority or oversight. As a result, the ICE 
Bylaws would no longer provide that NYSE Arca may inspect the books and 
records of NYSE Arca Equities or NYSE Arca, LLC. However, the proposed 
change would have no substantive effect, because NYSE Arca would retain 
its authority pursuant to NYSE Arca Equities Rules 14.1 and 14.3.\25\ 
The national securities exchanges NYSE, NYSE MKT, NYSE Arca and NYSE 
National do not have regulatory authority or oversight over each other.
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    \25\ NYSE Arca Equities Rule 14.1(b) provides, among other 
things, that the books and records of NYSE Arca Equities are subject 
to the oversight of the NYSE Arca pursuant to the Act, and that the 
books and records of NYSE Arca Equities shall be subject at all 
times to inspection and copying by NYSE Arca. NYSE Arca Equities 
Rule 14.3(a) provides, among other things, that the books and 
records of NYSE Arca, LLC are deemed to be the books and records of 
NYSE Arca and NYSE Arca Equities for purposes of and subject to 
oversight pursuant to the Exchange Act. See also CBOE Holdings, Inc. 
Certificate of Incorporation, Article Fifteenth (providing that the 
books and records of a Regulated Securities Exchange Subsidiary 
shall be subject at all times to inspection by such subsidiary).
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    Article XII of the ICE Bylaws was added in connection with the 
acquisition of NYSE National, previously National Stock Exchange, Inc., 
in 2016.\26\ The Exchange proposes to delete Article XII of the ICE 
Bylaws in its entirety. Because the substance of Article XII would be 
addressed by the proposed amendments to the ICE Certificate, Article 
XII would no longer be necessary. Specifically,
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    \26\ See Securities Exchange Act Releases No. 79902 (January 30, 
2017) 82 FR 9258 (February 3, 2017) (SR-NSX-2016-16); and 79901 
(January 30, 2017), 82 FR 9251 (February 3, 2017) (SR-NYSE-2016-90, 
SR-NYSEArca2016-167, SR-NYSEMKT-2016-122).
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     the substance of Section 12.1(a)(1) of the ICE Bylaws 
would be addressed in revised Article V, Section A.3.(c)(ii) of the ICE 
Certificate;
     the substance of Section 12.1(a)(2) of the ICE Bylaws 
would be addressed in revised Article V, Section A.3.(d)(ii) of the ICE 
Certificate;
     the substance of Section 12.1(b) of the ICE Bylaws would 
be addressed in revised Article V, Section B.3.(d) of the ICE 
Certificate; and
     the substance of Section 12.2 of the ICE Bylaws would be 
addressed in revised Article X(B) of the ICE Certificate.
Meetings of Stockholders
    In addition to the proposed changes corresponding to the proposed 
amendments to the ICE Certificate, the Exchange proposes to amend 
several sections of Article II (Meetings of Stockholders).
    The Exchange proposes to simplify Section 2.1 of the ICE Bylaws, 
which relates to the location of stockholder meetings. The revised 
provision would provide that, as is true now, the location, if any, as 
well as the decision to hold a stockholder meeting solely by remote 
communication, would be determined by the Board of Directors and stated 
in the notice of meeting. The proposed changes are as follow:
     The first sentence would be revised to remove the text 
``for the election of directors'', ``in the City of Atlanta, State of 
Georgia,'' and ``as may be fixed from time to time by the Board of 
Directors, or at such other place.'' The text ``as shall be designated 
from time to time by the Board of Directors and stated in the notice of 
the meeting.'' would be deleted and ``or may'' would be added in its 
place. The second sentence would be deleted in its entirety.
     In the third sentence, the text ``The Board of Directors 
may, in its sole discretion, determine that any meeting of stockholders 
shall'' and ``as authorized by law'' would be deleted. The word 
``solely'' would be added after ``instead be held'' and the text ``, in 
each case as may be designated by the Board of Directors from time to 
time and stated in the notice of meeting'' added to the end of the 
sentence.
    Section 2.7 relates to the quorum for stockholder meetings. The 
Exchange proposes to conform the quorum requirements in the ICE Bylaws 
to those in the ICE Certificate. To do so, it proposes to delete the 
first three sentences of Section 2.7 and replace it with the sentence 
``Section B of Article IX of the certificate of incorporation sets 
forth the requirements for establishing a quorum at meetings of 
stockholders of the Corporation.''
    Section 2.13(b) sets forth the advance notice requirements for 
stockholder proposals. The Exchange proposes to make the following 
changes to Section 2.13(b).
     In addition to stockholders of record, the ICE Bylaws 
permit certain beneficial holders (defined as ``Nominee Holders'') to 
nominate directors or bring other matters for consideration before the 
Board of Directors meeting. The Exchange proposes to make simplifying 
wording changes in clause (iii) of the first sentence of Section 
2.13(b), as follows:
     In clause (x), the text ``stockholder that holds of record 
stock of the Corporation'' would be amended so that it read [sic] 
``stockholder of record.''
     In clause (y), the following text would be deleted: 
``holds such''; `` `street name' ''; ``of such stock and can 
demonstrate to''; ``indirect''; ``of, and such Nominee Holder's''; and 
the comma before ``such stock on such matter.'' The revised clause 
would read as follows: ``is a person (a `Nominee Holder') that 
beneficially owns stock of the Corporation through a nominee or other 
holder of record and provides the Corporation with proof of such 
beneficial ownership, including the entitlement to vote such stock on 
such matter.''
     In the current third and fourth sentences of Section 
2.13(b), the term ``indirect ownership'' would be changed to 
``beneficial ownership'' for consistency.
     The Exchange proposes to add a new defined term, 
``Proponent,'' to capture both stockholders and Nominee Holders. 
Accordingly:
     A new sentence would be added to Section 2.13(b)(iii) 
between the first and second sentences, stating that ``Stockholders and 
Nominee Holders who bring matters before the annual meeting pursuant to 
Section 2.13(b)(iii) are hereinafter referred to as `Proponents'.''
     Throughout Section 2.13(b), ``stockholder,'' 
``stockholders'' and ``stockholder's'' would be replaced with 
``Proponent,'' ``Proponents'' and ``Proponent's,'' respectively.
     Throughout Section 2.13(b), ``Proponent'' would replace 
the phrases ``stockholder or beneficial owner,'' ``stockholder, by such 
beneficial owner,'' ``stockholder, such beneficial owner,'' 
``stockholder and by such beneficial owner, if any,'' and ``stockholder 
or any beneficial owner on whose behalf a nomination or nominations are 
being made or business or matter is being proposed.'' The word 
``Proponent's'' would replace the phrase ``stockholder's or such 
beneficial owner's.''
     Presently, the requirement for disclosing share ownership 
appears three times: In the current third sentence, which sets forth 
the provisions for stockholder notices relating to director 
nominations, the current fourth sentence, which sets forth the 
provisions for stockholder notices relating to other matters, and the 
current fifth sentence, which sets forth the information that a 
shareholder must include in any stockholder notice. Rather than keep 
the duplication, Exchange proposes to remove the

[[Page 18056]]

requirement from the third and fourth sentences and retain the 
requirement in clause (i) of the fifth sentence. Accordingly, the text 
``, the number and class of all shares of each class of stock of the 
Corporation owned of record and beneficially by such stockholder'' 
would be deleted from the current third and fourth sentences.
     In the current fourth sentence, the requirement that a 
stockholder notice include information regarding any material interest 
in the matter proposed ``(other than as a stockholder)'' would be 
clarified by adding ``or beneficial owner of stock'' after 
``stockholder'' within the parenthetical, because a Proponent who is a 
nominee holder is not a stockholder.
     In clause (i) of the current fifth sentence, the text 
``such Proponent or'' would be added before ``any Associated Person.''
     Clause (i) of the current sixth sentence sets forth the 
meaning of ``Associated Person.'' The Exchange proposes to narrow the 
text to eliminate all beneficial owners of stock held of record or 
beneficially by the Proponent from the definition, and instead to cover 
only those beneficial owners on whose behalf the stockholder notice is 
being delivered. Accordingly, the Exchange proposes to replace the text 
``stockholder or any beneficial owner on whose behalf a nomination or 
nominations are being made or business or matter is being proposed,'' 
with ``Proponent'' and, in clause (i)(x), replace the text ``owned of 
record or beneficially by such stockholder or by such beneficial 
owner'' with ``on whose behalf such Proponent is delivering a 
Stockholder Notice.''
Additional Proposed Changes
    In addition to the changes proposed above, the Exchange proposes to 
amend several additional sections of the ICE Bylaws.
    The ICE Bylaws refer to a ``Vice Chairman of the Board.'' However, 
the Board of Directors of ICE has not had a Vice Chairman since the 
sale of the Euronext business in 2014. Accordingly, in Sections 2.9, 
3.6(b) and 3.8, the Exchange proposes to replace ``Vice Chairman of the 
Board'' with ``lead independent director.'' As a result, the lead 
independent director would preside over meetings of stockholders in the 
absence of the Chairman of the Board (Section 2.9), have the authority 
to call a special meeting of the Board of Directors (Section 3.6(b)) 
and would preside over meetings of the Board of Directors in the 
absence of the Chairman of the Board (Section 3.8).
    In Section 3.12, relating to the conduct of meetings of committees 
of the Board of Directors of ICE, a reference to ``Article II of these 
Bylaws'' would be corrected to read ``this Article III of these 
Bylaws.''
    Section 3.14 sets forth considerations directors must take into 
account in discharging their responsibilities as members of the board 
of directors. The Exchange proposes to amend the last sentence of 
Section 3.14(c), which limits claims against directors, officers and 
employees of ICE and against ICE. The revised text would be expanded in 
scope to apply to any ``past or present stockholder, employee, 
beneficiary, agent, customer, creditor, community or regulatory 
authority or member thereof or other person or entity,'' and to protect 
agents of ICE as well as directors, officers and employees. These 
changes would conform the provision to the analogous statement in the 
governing documents of other holding companies of national securities 
exchanges, which are substantially similar.\27\
---------------------------------------------------------------------------

    \27\ See Amended and Restated Bylaws of Bats Global Markets, 
Inc., Article XII, Section 12.01; Amended and Restated Limited 
Liability Company Agreement of BOX Holdings Group LLC, Article 4, 
Section 4.12; Bylaws of IEX Group, Inc., Section 34; and Amended and 
Restated Bylaws of Miami International Holdings, Inc., Article VII, 
Section 1.
---------------------------------------------------------------------------

    Finally, conforming changes would be made to the title and date of 
the ICE Bylaws.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \28\ in general, and with Section 
6(b)(1) \29\ in particular, in that it enables the Exchange to be so 
organized as to have the capacity to be able to carry out the purposes 
of the Exchange Act and to comply, and to enforce compliance by its 
exchange members and persons associated with its exchange members, with 
the provisions of the Exchange Act, the rules and regulations 
thereunder, and the rules of the Exchange.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78f(b).
    \29\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

    In particular, the Exchange believes that the proposed amendments 
to replace references to the U.S. Regulated Subsidiaries and to the 
NYSE, NYSE MKT, NYSE Arca, NYSE Arca Equities and NYSE Arca, LLC with 
references to an ``Exchange'' or the ``Exchanges,'' as appropriate, 
would contribute to the orderly operation of the Exchange by adding 
clarity and transparency to the Exchange's rules by eliminating 
references to entities that are not national securities exchanges in 
the ICE Certificate and ICE Bylaws. The Exchange Act definition of 
``exchange'' states that ``exchange'' ``includes the market place and 
the market facilities maintained by such exchange.'' \30\ Accordingly, 
all market places and market facilities maintained by an Exchange would 
fall within the definition of Exchange and therefore would fall within 
the scope of the ICE Certificate and ICE Bylaws. The Exchange notes 
that the proposed change would align Article V of the ICE Certificate 
with voting and ownership concentration limits in the certificates of 
incorporation of other publicly traded companies that own one or more 
national securities exchanges, which do not include references to 
subsidiaries other than national securities exchanges.\31\ NYSE Arca, 
as the national securities exchange, would retain the regulatory and 
self-regulatory responsibility for the NYSE Arca options and equities 
markets.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78c(a)(1).
    \31\ See note 11, supra.
---------------------------------------------------------------------------

    Similarly, as a result of the proposed use of ``Exchanges'' instead 
of ``U.S. Regulated Subsidiaries,'' ICE Bylaws Section 8.3 would no 
longer provide that any U.S. Regulated Subsidiary is authorized to 
inspect the books and records of another U.S. Regulated Subsidiary over 
which the first has regulatory authority or oversight, adding further 
clarity and transparency to the Exchange's rules.\32\
---------------------------------------------------------------------------

    \32\ As noted above, the ICE Bylaws would no longer provide that 
NYSE Arca may inspect the books and records of NYSE Arca Equities or 
NYSE Arca, LLC. However, the proposed change would have no 
substantive effect, because NYSE Arca would retain its authority 
pursuant to NYSE Arca Equities Rules 14.1 and 14.3. NYSE, NYSE MKT, 
NYSE Arca and NYSE National do not have regulatory authority or 
oversight over each other, and so the proposed change would have no 
effect on those entities' rights.
---------------------------------------------------------------------------

    Further, the proposed use of the defined term ``Member'' in place 
of the lists of categories of members and permit holders in Article V 
of the ICE Certificate would simplify the provisions without 
substantive change, thereby further adding clarity and transparency to 
the Exchange's rules and aligning the provision in the ICE Certificate 
with the voting and ownership concentration limits in the certificates 
of incorporation of other publicly traded companies that own one or 
more national securities exchanges, which use a similar description of 
membership.\33\ Similarly, the proposed use of the defined term 
``Intermediate Holding Company'' in place of the list of intermediate 
holding companies in Article V of the ICE Certificate and Section 3.14 
of the ICE Bylaws would

[[Page 18057]]

simplify the provisions without substantive change, thereby further 
adding clarity and transparency to the Exchange's rules.
---------------------------------------------------------------------------

    \33\ See note 20, supra.
---------------------------------------------------------------------------

    For similar reasons, the Exchange also believes that this filing 
furthers the objectives of Section 6(b)(5) of the Exchange Act \34\ 
because the proposed rule change would be consistent with and would 
create a governance and regulatory structure that 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 regulating, clearing, settling, 
processing information with respect to, and 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.
---------------------------------------------------------------------------

    \34\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Specifically, the proposed amendments (1) replacing references to 
the U.S. Regulated Subsidiaries and to the NYSE, NYSE MKT, NYSE Arca, 
NYSE Arca Equities and NYSE Arca, LLC with references to an 
``Exchange'' or the ``Exchanges,'' as appropriate; (2) using ``Member'' 
in place of the lists of categories of members and permit holders in 
Article V of the ICE Certificate; (3) using ``Intermediate Holding 
Company'' in place of the list of intermediate holding companies in 
Article V of the ICE Certificate and Section 3.14 of the ICE Bylaws; 
and (4) removing the ability of a U.S. Regulated Subsidiary to inspect 
the books and records of other U.S. Regulated Subsidiaries in ICE 
Bylaws Section 8.3 would remove impediments to and perfect the 
mechanism of a free and open market by simplifying and streamlining the 
Exchange's rules, thereby ensuring that persons subject to the 
Exchange's jurisdiction, regulators, and the investing public can more 
easily navigate and understand the ICE governing documents.
    The Exchange believes that the proposed amendments to the last 
sentence of Section 3.14(c) of the ICE Bylaws, which limits claims 
against directors, officers and employees of ICE and against ICE, would 
remove impediments to, and perfect the mechanism of a free and open 
market and a national market system and, in general, protect investors 
and the public interest because the proposed changes would conform the 
provision to the analogous statement in the governing documents of 
other holding companies of national securities exchanges, which are 
substantially similar.\35\
---------------------------------------------------------------------------

    \35\ See Amended and Restated Bylaws of Bats Global Markets, 
Inc., Article XII, Section 12.01; Amended and Restated Limited 
Liability Company Agreement of BOX Holdings Group LLC, Article 4, 
Section 4.12; Bylaws of IEX Group, Inc., Section 34; and Amended and 
Restated Bylaws of Miami International Holdings, Inc., Article VII, 
Section 1.
---------------------------------------------------------------------------

    The Exchange believes that the proposed amendments to remove 
references to NYSE Market, NYSE Regulation and the Vice Chairman and to 
remove the cross reference to Section 11.2(b) of the ICE Bylaws from 
Article X of the ICE Certificate would remove impediments to, and 
perfect the mechanism of a free and open market and a national market 
system and, in general, protect investors and the public interest 
because the changes would eliminate obsolete references, thereby 
reducing potential confusion. Market participants and investors would 
not be harmed and in fact could benefit from the increased clarity and 
transparency in the ICE Certificate and ICE Bylaws. Such increased 
clarity and transparency would ensure that persons subject to the 
Exchange's jurisdiction, regulators, and the investing public can more 
easily navigate and understand the ICE governing documents.
    The Exchange believes that the proposed amendments to Article II of 
the ICE Bylaws, regarding meetings of stockholders, would also remove 
impediments to, and perfect the mechanism of a free and open market and 
a national market system and, in general, protect investors and the 
public interest because the changes would increase the clarity of the 
relevant sections of Article II, thereby reducing potential confusion. 
Market participants and investors would not be harmed and in fact could 
benefit from the increased clarity and transparency regarding the 
location of stockholder meetings and advance notice requirements, and 
the conformance of the quorum requirements with those in the ICE 
Certificate, and so would more easily navigate and understand the ICE 
Bylaws.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Exchange Act. The proposed rule 
change is not designed to address any competitive issue but rather 
update and streamline the ICE Certificate and Bylaws, delete obsolete 
or unnecessary references and make other simplifying or clarifying 
changes to the ICE governing documents. The Exchange believes that the 
proposed rule change will serve to promote clarity and consistency, 
thereby reducing burdens on the marketplace and facilitating investor 
protection. The proposed rule change would result in no concentration 
or other changes of ownership of exchanges.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or up to 90 days (i) as the Commission may designate 
if it finds such longer period to be appropriate and publishes its 
reasons for so finding or (ii) as to which the self-regulatory 
organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be 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, as modified by Amendment No. 1, 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 [email protected]. Please include 
File Number SR-NYSEMKT-2017-17 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-NYSEMKT-2017-17. 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/

[[Page 18058]]

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 the 
hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be 
available for inspection and copying at the principal office of the 
Exchange. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-
NYSEMKT-2017-17 and should be submitted on or before May 5, 2017.
---------------------------------------------------------------------------

    \36\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\36\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-07532 Filed 4-13-17; 8:45 am]
 BILLING CODE 8011-01-P



                                                                                   Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices                                                18051

                                                will allow more investors the                             milliseconds (based on the recent TPH                 amendments, all written statements
                                                opportunity to receive price                              survey, review of auction responses, and              with respect to the proposed rule
                                                improvement through AIM and SAM,                          shorter response periods in other                     change that are filed with the
                                                and will reduce the market risk for                       auction mechanisms available on the                   Commission, and all written
                                                TPHs using AIM and SAM. Finally, as                       Exchange, as discussed above). Finally,               communications relating to the
                                                mentioned above, other options                            the proposed rule change offers the                   proposed rule change between the
                                                exchanges, such as the BX, Phlx, and                      same exposure period to all TPHs and                  Commission and any person, other than
                                                ISE, have already amended their rules to                  would not impose a competitive burden                 those that may be withheld from the
                                                permit response times consistent with                     on any particular participant.                        public in accordance with the
                                                those proposed here.11 As such, the                                                                             provisions of 5 U.S.C. 552, will be
                                                Exchange believes the proposed rule                       C. Self-Regulatory Organization’s                     available for Web site viewing and
                                                change would help perfect the                             Statement on Comments on the                          printing in the Commission’s Public
                                                mechanism for a free and open national                    Proposed Rule Change Received From                    Reference Room, 100 F Street NE.,
                                                market system and generally help                          Members, Participants, or Others                      Washington, DC 20549 on official
                                                protect investors’ and the public’s                         The Exchange neither solicited nor                  business days between the hours of
                                                interest.                                                 received comments on the proposed                     10:00 a.m. and 3:00 p.m. Copies of such
                                                   The Exchange believes the proposed                     rule change.                                          filing also will be available for
                                                rule change is not unfairly                                                                                     inspection and copying at the principal
                                                discriminatory because the AIM and                        III. Date of Effectiveness of the
                                                                                                                                                                office of the Exchange. All comments
                                                SAM duration would be the same for all                    Proposed Rule Change and Timing for
                                                                                                                                                                received will be posted without change;
                                                TPHs. All TPHs who have elected to                        Commission Action
                                                                                                                                                                the Commission does not edit personal
                                                participate in AIM and SAM auctions                          Within 45 days of the date of                      identifying information from
                                                have today, and will continue to have,                    publication of this notice in the Federal             submissions. You should submit only
                                                an equal opportunity to receive and                       Register or within such longer period                 information that you wish to make
                                                respond to AIM and SAM messages.                          up to 90 days (i) as the Commission may               available publicly. All submissions
                                                Additionally, CBOE believes the                           designate if it finds such longer period              should refer to File Number SR–CBOE–
                                                reduction in the AIM and SAM duration                     to be appropriate and publishes its                   2017–029, and should be submitted on
                                                reduces the market risk for all TPHs                      reasons for so finding or (ii) as to which            or before May 5, 2017.
                                                using AIM and SAM. The reduction in                       the Exchange consents, the Commission                   For the Commission, by the Division of
                                                time period reduces the market risk for                   will:                                                 Trading and Markets, pursuant to delegated
                                                the Initiating TPH as well as any TPHs                       A. By order approve or disapprove                  authority.12
                                                providing orders in response to an AIM                    such proposed rule change, or                         Eduardo A. Aleman,
                                                and SAM auction. Moreover, based on                          B. institute proceedings to determine              Assistant Secretary.
                                                the feedback the Exchange received                        whether the proposed rule change
                                                                                                                                                                [FR Doc. 2017–07534 Filed 4–13–17; 8:45 am]
                                                from its TPHs, the Exchange believes                      should be disapproved.
                                                                                                                                                                BILLING CODE 8011–01–P
                                                that a reduction in the RFR period to a
                                                                                                          IV. Solicitation of Comments
                                                minimum of 100 milliseconds would
                                                not impair TPHs’ ability to compete in                      Interested persons are invited to
                                                                                                                                                                SECURITIES AND EXCHANGE
                                                the AIM and SAM. The Exchange                             submit written data, views, and
                                                                                                                                                                COMMISSION
                                                believes these results support the                        arguments concerning the foregoing,
                                                assertion that a reduction in the AIM                     including whether the proposed rule                   [Release No. 34–80419; File No. SR–
                                                and SAM duration would not be                             change is consistent with the Act.                    NYSEMKT–2017–17]
                                                unfairly discriminatory and would                         Comments may be submitted by any of
                                                                                                          the following methods:                                Self-Regulatory Organizations; NYSE
                                                benefit investors.
                                                                                                                                                                MKT LLC; Notice of Filing of Proposed
                                                B. Self-Regulatory Organization’s                         Electronic Comments                                   Rule Change, as Modified by
                                                Statement on Burden on Competition                          • Use the Commission’s Internet                     Amendment No. 1 Thereto, Amending
                                                  CBOE does not believe that the                          comment form (http://www.sec.gov/                     the Certificate of Incorporation and
                                                proposed rule change will impose any                      rules/sro.shtml); or                                  Bylaws of Its Ultimate Parent
                                                burden on competition that is not                           • Send an email to rule-comments@                   Company, Intercontinental Exchange,
                                                necessary or appropriate in furtherance                   sec.gov. Please include File Number SR–               Inc.
                                                of the purposes of the Act. The                           CBOE–2017–029 on the subject line.                    April 10, 2017.
                                                proposed rule change is not designed to                   Paper Comments                                           Pursuant to Section 19(b)(1) 1 of the
                                                address any aspect of competition, but                                                                          Securities Exchange Act of 1934 (the
                                                instead would continue to provide                           • Send paper comments in triplicate
                                                                                                                                                                ‘‘Act’’) 2 and Rule 19b–4 thereunder,3
                                                market participants with sufficient time                  to Secretary, Securities and Exchange
                                                                                                                                                                notice is hereby given that, on March
                                                to respond, compete, and provide price                    Commission, 100 F Street NE.,
                                                                                                                                                                28, 2017, NYSE MKT LLC (the
                                                improvement for orders entered into                       Washington, DC 20549–1090.
                                                                                                                                                                ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with
                                                AIM and SAM. The proposed rule also                       All submissions should refer to File                  the Securities and Exchange
                                                provides investors and other market                       Number SR–CBOE–2017–029. This file                    Commission (the ‘‘Commission’’) the
                                                participants with more timely                             number should be included on the                      proposed rule change as described in
                                                                                                          subject line if email is used. To help the
sradovich on DSK3GMQ082PROD with NOTICES




                                                executions, thereby reducing their                                                                              Items I, II, and III below, which Items
                                                market risk. As proposed, the rule does                   Commission process and review your                    have been prepared by the self-
                                                not impose an undue burden on                             comments more efficiently, please use                 regulatory organization. On April 6,
                                                competition because TPHs who elect to                     only one method. The Commission will
                                                participate in AIM and SAM are capable                    post all comments on the Commission’s                   12 17 CFR 200.30–3(a)(12).
                                                of responding to the RFR in under 100                     Internet Web site (http://www.sec.gov/                  1 15 U.S.C.78s(b)(1).
                                                                                                          rules/sro.shtml). Copies of the                         2 15 U.S.C. 78a.
                                                  11 See   note 1 supra.                                  submission, all subsequent                              3 17 CFR 240.19b–4.




                                           VerDate Sep<11>2014     16:21 Apr 13, 2017   Jkt 241001   PO 00000   Frm 00085   Fmt 4703   Sfmt 4703   E:\FR\FM\14APN1.SGM    14APN1


                                                18052                            Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices

                                                2017, the Exchange filed Amendment                      Certificate of Incorporation (the ‘‘ICE               exchanges owned by ICE (the Exchange,
                                                No. 1 to the proposal.4 The Commission                  Certificate’’) and Seventh Amended and                NYSE, NYSE Arca, and NYSE National),
                                                is publishing this notice to solicit                    Restated Bylaws (the ‘‘ICE Bylaws’’) to               NYSE Arca, LLC, and NYSE Arca
                                                comments on the proposed rule change,                   (1) update and streamline references to               Equities, Inc. (‘‘NYSE Arca Equities’’),
                                                as modified by Amendment No. 1, from                    ICE subsidiaries that either are or                   or their successors, in each case to the
                                                interested persons.                                     control national securities exchanges                 extent that such entities continue to be
                                                                                                        and delete references to other                        controlled, directly or indirectly, by
                                                I. Self-Regulatory Organization’s                       subsidiaries of ICE; (2) eliminate an                 ICE.6
                                                Statement of the Terms of Substance of                  obsolete cross-reference in the ICE                      Article V of the ICE Certificate also
                                                the Proposed Rule Change                                Certificate to the ICE Bylaws and make                authorizes ICE’s Board of Directors to
                                                   The Exchange proposes to amend the                   a technical correction to a cross-                    grant exceptions to the voting and
                                                certificate of incorporation and bylaws                 reference within the ICE Bylaws; (3)                  ownership concentration limitations if
                                                of its ultimate parent company,                         make certain simplifying or clarifying                the Board of Directors makes certain
                                                Intercontinental Exchange, Inc. (‘‘ICE’’),              changes in the ICE Bylaws relating to                 determinations. Those include
                                                to (1) update and streamline references                 the location of stockholder meetings,                 determinations that such an exception
                                                to ICE subsidiaries that either are or                  quorum requirements, and requirements                 would not impair the ability of ICE, the
                                                control national securities exchanges                   applicable to persons entitled to                     U.S. Regulated Subsidiaries, ICE
                                                and delete references to other                          nominate directors or make proposals at               Holdings, NYSE Holdings, and NYSE
                                                subsidiaries of ICE; (2) eliminate an                   a meeting of ICE’s stockholders; and (4)              Group to perform their respective
                                                obsolete cross-reference in ICE’s                       replace obsolete references in the ICE                responsibilities under the Exchange Act
                                                certificate of incorporation to its bylaws              Bylaws to the Vice Chair with references              and the rules and regulations
                                                and make a technical correction to a                    to the lead independent director.                     thereunder, and that such an exception
                                                cross-reference within the bylaws; (3)                     ICE owns 100% of the equity interest               is otherwise in the best interests of ICE,
                                                make certain simplifying or clarifying                  in Intercontinental Exchange Holdings,                its stockholders and the U.S. Regulated
                                                changes in ICE’s bylaws relating to the                 Inc. (‘‘ICE Holdings’’), which in turn                Subsidiaries.
                                                location of stockholder meetings,                       owns 100% of the equity interest in                      NYSE MKT proposes to amend
                                                quorum requirements, and requirements                   NYSE Holdings LLC (‘‘NYSE                             Article V to replace references to the
                                                applicable to persons entitled to                       Holdings’’). NYSE Holdings owns 100%                  U.S. Regulated Subsidiaries with
                                                nominate directors or make proposals at                 of the equity interest of NYSE Group,                 references to the ‘‘Exchanges.’’ An
                                                a meeting of ICE’s stockholders; and (4)                Inc. (‘‘NYSE Group’’), which in turn                  ‘‘Exchange’’ would be defined as a
                                                replace obsolete references in the                      directly owns 100% of the equity                      national securities exchange registered
                                                bylaws to the Vice Chair with references                interest of the Exchange and its national             under Section 6 of the Exchange Act 7
                                                to the lead independent director. The                   securities exchange affiliates, the New               that is directly or indirectly controlled
                                                proposed rule change is available on the                York Stock Exchange LLC (‘‘NYSE’’),                   by ICE.8 Accordingly, Article V would
                                                Exchange’s Web site at www.nyse.com,                    NYSE Arca, Inc. (‘‘NYSE Arca’’) and                   no longer include references to NYSE
                                                at the principal office of the Exchange,                NYSE National, Inc. (‘‘NYSE                           Arca, LLC or NYSE Arca Equities. NYSE
                                                and at the Commission’s Public                          National’’).5                                         MKT believes omitting such entities is
                                                Reference Room.                                                                                               appropriate because the Exchange Act
                                                                                                        ICE Certificate                                       definition of ‘‘exchange’’ states that
                                                II. Self-Regulatory Organization’s                        The Exchange proposes to amend the                  ‘‘exchange’’ ‘‘includes the market place
                                                Statement of the Purpose of, and                        limitations on voting and ownership in                and the market facilities maintained by
                                                Statutory Basis for, the Proposed Rule                  Article V of the ICE Certificate to update            such exchange.’’ 9 In addition, NYSE
                                                Change                                                  and streamline references to ICE                      Arca, as the national securities
                                                   In its filing with the Commission, the               subsidiaries that are national securities             exchange, has the regulatory and self-
                                                self-regulatory organization included                   exchanges or that control national                    regulatory responsibility for the NYSE
                                                statements concerning the purpose of,                   securities exchanges, as well as to delete            Arca options and equities markets.10
                                                and basis for, the proposed rule change                 references to other subsidiaries of ICE.              Moreover, the proposed change would
                                                and discussed any comments it received                  In addition, it proposes to revise the                align Article V with voting and
                                                on the proposed rule change. The text                   amendment provision in Article X of the               ownership concentration limits in the
                                                of those statements may be examined at                  ICE Certificate to remove an obsolete                 certificates of incorporation of other
                                                the places specified in Item IV below.                  reference.                                            publicly traded companies that own one
                                                The Exchange has prepared summaries,                                                                          or more national securities exchanges,
                                                                                                        Limitations on Voting and Ownership
                                                set forth in sections A, B, and C below,
                                                of the most significant parts of such                     Article V of the ICE Certificate                       6 ICE Certificate, Article V, Section A.10; ICE

                                                                                                        establishes voting limitations and                    Bylaws, Article III, Section 3.15. NYSE Arca, LLC,
                                                statements.                                                                                                   is a subsidiary of NYSE Group, and NYSE Arca
                                                                                                        ownership concentration limitations on                Equities is a subsidiary of NYSE Arca.
                                                A. Self-Regulatory Organization’s                       owners of ICE common stock above                         7 15 U.S.C. 78f.
                                                Statement of the Purpose of, and the                    certain thresholds for so long as ICE                    8 See proposed Fourth Amended and Restated
                                                Statutory Basis for, the Proposed Rule                  owns any U.S. Regulated Subsidiary. By                Certificate of Incorporation of Intercontinental
                                                Change                                                  reference to the ICE Bylaws, ‘‘U.S.                   Exchange, Inc. (‘‘Proposed ICE Certificate’’), Article
                                                                                                                                                              V, Section A.3(a).
                                                1. Purpose                                              Regulated Subsidiaries’’ is defined to                   9 15 U.S.C. 78c(a)(1).
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                                                                                                        mean the four national securities                        10 See NYSE Arca Equities Rule 3.4 (‘‘The NYSE
                                                   The Exchange proposes to amend
                                                                                                                                                              Arca, Inc. (‘NYSE Arca Parent’), as a self-regulatory
                                                ICE’s Third Amended and Restated                          5 ICE is a publicly traded company listed on the    organization registered with the Securities and
                                                                                                        NYSE. The Exchange’s affiliates NYSE, NYSE Arca,      Exchange Commission pursuant to Section 6 of the
                                                   4 Amendment No. 1 clarifies that ICE is a public     and NYSE National have each submitted                 Exchange Act, shall have ultimate responsibility in
                                                company listed on the NYSE and that the word            substantially the same proposed rule change to        the administration and enforcement of rules
                                                ‘‘indirect’’ is proposed to be deleted from clause      propose the changes described herein. See SR–         governing the operation of its subsidiary, NYSE
                                                (iii)(y) of the first sentence of Section 2.13(b) of    NYSE–2017–13, SR–NYSEArca–2017–29, and SR–            Arca Equities, Inc. (‘Corporation’)’’). See also NYSE
                                                ICE’s bylaws.                                           NYSENAT–2017–01.                                      Arca Equities Rule 14.1.



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                                                                                  Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices                                                 18053

                                                which do not include references to                        membership recognized by each                              Holding Company’) or’’; the text ‘‘,
                                                subsidiaries other than national                          Exchange.17 Similarly, the conditions                      Intercontinental Exchange Holdings,
                                                securities exchanges.11                                   relating to a person seeking approval to                   Inc. (‘ICE Holdings’), NYSE Holdings
                                                  As noted above, Article V of the ICE                    exceed the ownership concentration                         LLC (‘NYSE Holdings’) or NYSE Group,
                                                Certificate authorizes ICE’s Board of                     limitation would be rephrased in the                       Inc. (‘NYSE Group’) (if and to the extent
                                                Directors to grant exceptions to the                      same way.18 Use of ‘‘Member’’ would                        that NYSE Group continues to exist as
                                                voting and ownership concentration                        permit a simplification, without                           a separate entity)’’ would be deleted;
                                                limitations if it makes certain                           substantive change, of the portion of the                  and ‘‘the U.S. Regulated Subsidiaries’’
                                                determinations. Such determinations                       definition of the term ‘‘Related Persons’’                 would be replaced with ‘‘each
                                                include that the proposed exception                       relating to members and trading permit                     Exchange.’’
                                                would not impair the ability of ICE                       holders.19                                                     • In Article V, Section A.3(c), ‘‘and’’
                                                Holdings, NYSE Holdings and NYSE                             NYSE MKT believes that the use of                       would be added between (i) and (ii); the
                                                Group to perform their respective                         ‘‘Member’’ and the changes to remove                       text ‘‘NYSE Arca, Inc. (‘NYSE Arca’) or
                                                responsibilities under the Exchange Act                   the Exchange-by-Exchange lists of                          NYSE Arca Equities, Inc. (‘NYSE Arca
                                                and the rules and regulations                             categories of Members would be                             Equities’) or any facility of NYSE Arca’’
                                                thereunder.12 NYSE MKT proposes to                        appropriate because it would align the                     would be replaced with ‘‘one or more
                                                amend Article V to replace the                            provision in the ICE Certificate with                      Exchanges’’; and the text ‘‘a Member (as
                                                references to ICE Holdings, NYSE                          voting and ownership concentration                         defined below) of any Exchange’’ would
                                                Holdings and NYSE Group with the                          limits in the certificates of incorporation                replace the text from ‘‘an ETP Holder (as
                                                defined term ‘‘Intermediate Holding                       of other publicly traded companies that                    defined in the NYSE Arca Equities rules
                                                Companies.’’                                              own one or more national securities                        of NYSE Arca’’ through the end of the
                                                  Finally, Article V includes lengthy                     exchanges, which use a similar                             paragraph.
                                                provisions listing the different                          description of membership.20                                   • In Article V, Section A.3(d), ‘‘and’’
                                                categories of members and permit                             To implement the proposed changes,                      would be added between (i) and (ii); the
                                                holders of each of the NYSE, NYSE                         NYSE MKT proposes the following                            text ‘‘NYSE Arca or NYSE Arca Equities
                                                MKT and NYSE Arca.13 NYSE MKT                             amendments to Article V of the ICE                         or any facility of NYSE Arca’’ would be
                                                proposes to use a new defined term,                       Certificate:                                               replaced with ‘‘one or more Exchanges’’;
                                                ‘‘Member,’’ to mean a person that is a                       • In Article V, Section A.1, the text                   and the text ‘‘a Member of any
                                                ‘‘member’’ of an Exchange within the                      ‘‘any U.S. Regulated Subsidiary (as                        Exchange’’ would replace the text from
                                                meaning of Section 3(a)(3)(A) of the                      defined below)’’ would be replaced with                    ‘‘an ETP Holder’’ through the end of the
                                                Exchange Act.14 NYSE MKT believes                         ‘‘a national securities exchange                           paragraph.
                                                that using ‘‘Member’’ in place of the list                registered under Section 6 of the                              • The definition of ‘‘Member’’ would
                                                of categories of members and permit                       Securities Exchange Act of 1934, as                        be added as new Article V, Section A.8,
                                                holders would simplify the provisions                     amended (the ‘Exchange Act’).’’                            defined to ‘‘mean a Person that is a
                                                and avoid Exchange-by-Exchange                               • In Article V, Section A.2, the text                   ‘member’ of an Exchange within the
                                                descriptions without substantive                          ‘‘Securities Exchange Act of 1934, as                      meaning of Section 3(a)(3)(A) of the
                                                change. Each of the categories listed—an                  amended (the ‘Exchange Act’),’’ would                      Exchange Act.’’ Article V, Sections A.8
                                                ETP Holder of NYSE Arca Equities (as                      be replaced with ‘‘Exchange Act.’’                         and A.9 would be renumbered as
                                                defined in the NYSE Arca Equities rules                      • In Article V, Section A.3(a), the text                Sections A.9 and A.10, respectively.
                                                of NYSE Arca); an OTP Holder or OTP                       ‘‘U.S. Regulated Subsidiary’’ would be                         • In Article V, Section A.9 (which
                                                Firm of NYSE Arca (each as defined in                     replaced with the text ‘‘national                          would be renumbered A.10), the
                                                the rules of NYSE Arca); a ‘‘member’’ or                  securities exchange registered under                       definition of the term ‘‘Related Person’’
                                                ‘‘member organization’’ of NYSE (as                       Section 6 of the Exchange Act that is                      would be simplified to eliminate the
                                                defined in the rules of the NYSE) and                     directly or indirectly controlled by the                   Exchange-by-Exchange definition, as
                                                NYSE MKT 15—is a ‘‘member’’ of an                         Corporation (each such national                            follows:
                                                exchange within the meaning of Section                    securities exchange so controlled, an                          • In Section A.10(d), the text
                                                3(a)(3)(A) of the Exchange Act.16                         ‘Exchange’), any entity controlled by the                  ‘‘ ‘member organization’ (as defined in
                                                  More specifically, the revised ICE                      Corporation that is not itself an                          the rules of New York Stock Exchange,
                                                Certificate would require, in the case of                 Exchange but that directly or indirectly                   as such rules may be in effect from time
                                                a person seeking approval to exercise                     controls an Exchange (each such                            to time), any ‘member’ (as defined in the
                                                voting rights in excess of 20% of the                     controlling entity, an ‘Intermediate                       rules of New York Stock Exchange, as
                                                outstanding votes, that neither such                                                                                 such rules may be in effect from time to
                                                person nor any of its related persons be                     17 See Proposed ICE Certificate, Article V, Section     time)’’ would be replaced with
                                                a Member of an Exchange, instead of                       A.3(c)(ii) and (d)(ii).                                    ‘‘Member, any Person’’;
                                                referring to the different categories of                     18 See Proposed ICE Certificate, Article V, Section         • In Section A.10(e), the text ‘‘an OTP
                                                                                                          B.3(d).                                                    Firm, any OTP Holder that is associated
                                                                                                             19 See Proposed ICE Certificate, Article V, Section
                                                  11 See Second Amended and Restated Certificate                                                                     with such Person’’ would be replaced
                                                                                                          A.10. For the current definition of ‘‘Related
                                                of Incorporation of CBOE Holdings, Inc. (‘‘CBOE
                                                                                                          Persons,’’ see ICE Certificate, Article V, Section A.9.    with ‘‘natural person and is a Member,
                                                Certificate’’), Article Sixth, Sections (a)(ii)(A) and       20 See Bats Certificate, Article Fifth, Sections        any broker or dealer that is also a
                                                (b)(ii)(A) (referencing ‘‘Regulated Securities
                                                Exchange Subsidiaries’’); and Amended and                 (a)(ii)(D) and (E) (defining an ‘‘Exchange Member’’        Member with which such Person is
                                                Restated Certificate of Incorporation of Bats Global      as ‘‘a Person that is a registered broker or dealer that   associated’’;
                                                                                                          has been admitted to membership in any national
                                                                                                                                                                         • ‘‘and’’ would be added between
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                                                Markets, Inc. (‘‘Bats Certificate’’), Article Fifth,
                                                Section (b)(i) and (ii) (referencing ‘‘Exchanges’’).      securities exchange registered under Section 6 of
                                                                                                          the Act with the Securities and Exchange                   Sections A.10(g) and (h); and
                                                                                                                                                                         • Sections A.10(i) through (l) would
                                                  12 ICE Certificate, Article V, Sections A.3(a)(i) and
                                                                                                          Commission . . . that is a direct or indirect
                                                B.3(a)(i).
                                                  13 See ICE Certificate, Article V, Section A.3(c)(ii)
                                                                                                          subsidiary of’’ Bats Global Markets, Inc.); and CBOE       be deleted.
                                                and (d)(ii) and Section A.9.
                                                                                                          Certificate, Article Sixth, Sections (a)(ii)(C)(y) and         • The definition of ‘‘U.S. Regulated
                                                                                                          (b)(ii)(D) (defining a ‘‘Trading Permit Holder’’ ‘‘as
                                                  14 15 U.S.C. 78c(a)(3)(A).
                                                                                                          defined in the Bylaws of any Regulated Securities
                                                                                                                                                                     Subsidiary’’ and ‘‘U.S. Regulated
                                                  15 See id.
                                                                                                          Exchange Subsidiary as they may be amended from            Subsidiaries’’ in Article V, Section A.10
                                                  16 15 U.S.C. 78c(a)(3)(A).                              time to time’’).                                           would be deleted.


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                                                18054                            Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices

                                                   • In Article V, Section B.1, the term                Additional Changes                                       • In Section 3.14(a)(2), the text ‘‘U.S.
                                                ‘‘Exchange’’ would replace the term                        The ICE Certificate includes                       Regulated Subsidiaries, NYSE Group,
                                                ‘‘U.S. Regulated Subsidiary.’’                          references to NYSE Market (DE), Inc.,                 Inc. (‘‘NYSE Group’’) (if and to the
                                                   • In Article V, Section B.3(a), the text             defined as ‘‘NYSE Market,’’ and NYSE                  extent that NYSE Group continues to
                                                ‘‘Exchange, Intermediate Holding                        Regulation, Inc. (‘‘NYSE Regulation’’).               exist as a separate entity), NYSE
                                                Company or’’ would replace the text                                                                           Holdings LLC (‘‘NYSE Holdings’’),
                                                                                                        NYSE Market and NYSE Regulation
                                                ‘‘U.S. Regulated Subsidiaries,’’; the text                                                                    Intercontinental Exchange Holdings,
                                                                                                        were previously parties to a Delegation
                                                ‘‘ICE Holdings, NYSE Holdings or NYSE                                                                         Inc. (‘ICE Holdings’)’’ would be replaced
                                                                                                        Agreement whereby the NYSE delegated
                                                Group (if and to the extent that NYSE                                                                         with ‘‘Exchanges, any entity controlled
                                                                                                        certain regulatory functions to NYSE
                                                Group continues to exist as a separate                                                                        by the Corporation that is not itself an
                                                                                                        Regulation and certain market functions
                                                entity)’’ would be deleted; and ‘‘each                                                                        Exchange but that directly or indirectly
                                                                                                        to NYSE Market. The Delegation
                                                Exchange’’ would replace ‘‘the U.S.                                                                           controls an Exchange (each such
                                                                                                        Agreement was terminated when the
                                                Regulated Subsidiaries.’’                                                                                     controlling entity, an ‘Intermediate
                                                                                                        NYSE re-integrated its regulatory and
                                                   • In Article V, Section B.3(d), the text                                                                   Holding Company’)’’; and the text ‘‘U.S.
                                                                                                        market functions. As a result, the two
                                                ‘‘NYSE Arca or NYSE Arca Equities or                                                                          Regulated Subsidiaries, NYSE Group (if
                                                                                                        entities ceased being regulated                       and to the extent that NYSE Group
                                                any facility of NYSE Arca’’ would be                    subsidiaries.23 NYSE Regulation was
                                                replaced with ‘‘any Exchange’’; and the                                                                       continues to exist as a separate entity),
                                                                                                        subsequently merged out of existence.                 NYSE Holdings, ICE Holdings’’ would
                                                text ‘‘an ETP Holder’’ through the end                  The proposed changes described above
                                                of the paragraph would be replaced with                                                                       be replaced with ‘‘Exchanges,
                                                                                                        would delete all references to NYSE                   Intermediate Holding Companies.’’
                                                ‘‘a Member of any Exchange.’’                           Market and NYSE Regulation from the                      • In Section 3.14(b)(3), the text ‘‘the
                                                   • The word ‘‘and’’ would be added                    ICE Certificate.24                                    U.S. Regulated Subsidiaries’’ and
                                                between Article V, Section B.3(c) and                      Finally, conforming changes would be               ‘‘their’’ would be replaced with ‘‘each
                                                (d); and Article V, Section B.3(e) and (f)              made to the title, recitals and signature             Exchange’’ and ‘‘its,’’ respectively.
                                                would be deleted.                                       line of the ICE Certificate.                             • In Article VII, ‘‘the U.S. Regulated
                                                Amendments                                              ICE Bylaws                                            Subsidiaries’’ would be replaced with
                                                                                                                                                              ‘‘any Exchange.’’
                                                   In addition to the amendments to                        The Exchange proposes to make                         • In Sections 3.14(a)(1), 8.1, 8.2,
                                                Article V, NYSE MKT proposes to                         certain amendments to the ICE Bylaws                  8.3(b), 8.4, 9.1, 9.2, 9.3 and 11.3, the text
                                                amend Article X (Amendments) of the                     to correspond to the proposed                         ‘‘U.S. Regulated Subsidiary’’ and ‘‘of the
                                                ICE Certificate.                                        amendments to the ICE Certificate. In                 U.S. Regulated Subsidiaries’’ would be
                                                   Clause (A) of Article X requires the                 addition, the Exchange proposes to                    replaced with ‘‘Exchange’’ and the text
                                                vote of 80% of all outstanding shares                   amend the ICE Bylaws to make certain                  ‘‘U.S. Regulated Subsidiaries’’ would be
                                                entitled to vote in order to reduce the                 changes relating to the location of                   replaced with ‘‘Exchanges.’’
                                                voting requirement set forth in Section                 stockholder meetings, quorum                             • In Sections 8.2(b), 8.4, 9.1, and 9.3,
                                                11.2(b) of the ICE Bylaws. However,                     requirements, and requirements                        the text ‘‘the U.S. Regulated
                                                Section 11.2(b) of the ICE Bylaws was                   applicable to persons entitled to                     Subsidiaries’’ and ‘‘U.S. Regulated
                                                deleted in 2015 after the sale by ICE of                nominate directors or make proposals at               Subsidiaries’’ would be replaced with
                                                the Euronext business.21 Accordingly,                   a meeting of ICE’s stockholders. Finally,             ‘‘an Exchange.’’
                                                NYSE MKT proposes to delete the                         it proposes to replace obsolete                          • In Section 9.3, the text ‘‘the U.S.
                                                requirement.                                            references to the Vice Chair with                     Regulated Subsidiaries’’ would be
                                                   Clause (B) of Article X currently                    references to the lead independent                    replaced with ‘‘each Exchange’’; ‘‘U.S.
                                                requires that, so long as ICE controls any              director.                                             Regulated Subsidiary’s’’ would be
                                                of the U.S. Regulated Subsidiaries, any                 Changes Corresponding to the Proposed                 replaced with ‘‘Exchange’s’’; and ‘‘their
                                                proposed amendment or repeal of any                     Amendments to the ICE Certificate                     respective’’ would be replaced with
                                                provision of the ICE Certificate must be                                                                      ‘‘its.’’
                                                submitted to the boards of the NYSE,                       The Exchange proposes to make                         • In Section 8.1, the text ‘‘New York
                                                NYSE Market, NYSE Regulation, NYSE                      changes to the ICE Bylaws                             Stock Exchange LLC, NYSE Arca, Inc.,
                                                Arca, NYSE Arca Equities, and NYSE                      corresponding to the proposed                         NYSE Arca Equities, Inc., NYSE MKT
                                                MKT for a determination as to whether                   amendments to the ICE Certificate, as                 LLC and NYSE National, Inc. or their
                                                such amendment or repeal must be filed                  described above.                                      successors’’ would be replaced with
                                                with the Commission under Section 19                       First, NYSE MKT proposes to use                    ‘‘any Exchange.’’ Similarly, in Section
                                                of the Exchange Act.22 NYSE MKT                         ‘‘Exchanges’’ in place of ‘‘U.S. Regulated            11.3, the text ‘‘New York Stock
                                                proposes that, in Clause (B) of Article X,              Subsidiaries,’’ as in the proposed                    Exchange LLC, NYSE Arca, Inc., NYSE
                                                the text ‘‘of the U.S. Regulated                        changes to the ICE Certificate.                       Arca Equities, Inc., NYSE MKT LLC and
                                                Subsidiaries’’ would be replaced with                   Accordingly, it proposes to make the                  NYSE National, Inc. or the boards of
                                                ‘‘Exchange’’; and ‘‘New York Stock                      following changes:                                    directors of their successors’’ would be
                                                Exchange, NYSE Market, NYSE                                • The definition of ‘‘U.S. Regulated               replaced with ‘‘each Exchange.’’
                                                Regulation, Inc., NYSE Arca, NYSE Arca                  Subsidiary’’ in Section 3.15 would be                    • In Sections 8.1 and 8.2, the defined
                                                Equities and NYSE MKT’’ would be                        deleted and replaced with a definition                term ‘‘U.S. Subsidiaries’ Confidential
                                                replaced with ‘‘each Exchange.’’ NYSE                   of ‘‘Exchange’’ that is the same as the               Information’’ would be replaced with
                                                                                                        definition in the proposed amended ICE
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                                                MKT believes that the use of                                                                                  ‘‘Exchange Confidential Information,’’
                                                ‘‘Exchange’’ is appropriate for the                     Certificate.                                          with the same meaning except limited
                                                reasons discussed above.                                                                                      to Exchanges.
                                                                                                          23 See Securities Exchange Act Release No. 75991
                                                                                                                                                                 • In Section 8.3(b), the text ‘‘U.S.
                                                                                                        (September 28, 2015), 80 FR 59837 (October 2, 2015    Regulated Subsidiary or any other U.S.
                                                  21 See Securities Exchange Act Release No. 74930      (SR–NYSE–2015–27).
                                                (May 12, 2015), 80 FR 28315 (May 18, 2015) (SR–           24 See ICE Certificate Article V, Sections          Regulated Subsidiary over which such
                                                NYSEMKT–2015–32).                                       A.3(c)(iii) and (d)(iii) and Section B.3(e), and      U.S. Regulated Subsidiary has
                                                  22 15 U.S.C. 78s.                                     Article X, clause (B).                                regulatory authority or oversight’’ would


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                                                                                 Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices                                            18055

                                                be replaced with ‘‘Exchange.’’ The                      Meetings of Stockholders                                 • In clause (x), the text ‘‘stockholder
                                                proposed change would remove the                           In addition to the proposed changes                that holds of record stock of the
                                                current provision that allows any U.S.                  corresponding to the proposed                         Corporation’’ would be amended so that
                                                Regulated Subsidiary to inspect the                     amendments to the ICE Certificate, the                it read [sic] ‘‘stockholder of record.’’
                                                books and records of another U.S.                                                                                • In clause (y), the following text
                                                                                                        Exchange proposes to amend several
                                                Regulated Subsidiary over which the                                                                           would be deleted: ‘‘holds such’’; ‘‘ ‘street
                                                                                                        sections of Article II (Meetings of
                                                first has regulatory authority or                                                                             name’ ’’; ‘‘of such stock and can
                                                                                                        Stockholders).
                                                oversight. As a result, the ICE Bylaws                                                                        demonstrate to’’; ‘‘indirect’’; ‘‘of, and
                                                                                                           The Exchange proposes to simplify
                                                would no longer provide that NYSE                                                                             such Nominee Holder’s’’; and the
                                                                                                        Section 2.1 of the ICE Bylaws, which
                                                Arca may inspect the books and records                                                                        comma before ‘‘such stock on such
                                                                                                        relates to the location of stockholder
                                                of NYSE Arca Equities or NYSE Arca,                                                                           matter.’’ The revised clause would read
                                                                                                        meetings. The revised provision would
                                                LLC. However, the proposed change                                                                             as follows: ‘‘is a person (a ‘Nominee
                                                                                                        provide that, as is true now, the
                                                would have no substantive effect,                                                                             Holder’) that beneficially owns stock of
                                                                                                        location, if any, as well as the decision
                                                because NYSE Arca would retain its                                                                            the Corporation through a nominee or
                                                                                                        to hold a stockholder meeting solely by               other holder of record and provides the
                                                authority pursuant to NYSE Arca                         remote communication, would be
                                                Equities Rules 14.1 and 14.3.25 The                                                                           Corporation with proof of such
                                                                                                        determined by the Board of Directors                  beneficial ownership, including the
                                                national securities exchanges NYSE,                     and stated in the notice of meeting. The
                                                NYSE MKT, NYSE Arca and NYSE                                                                                  entitlement to vote such stock on such
                                                                                                        proposed changes are as follow:                       matter.’’
                                                National do not have regulatory                            • The first sentence would be revised
                                                authority or oversight over each other.                                                                          • In the current third and fourth
                                                                                                        to remove the text ‘‘for the election of              sentences of Section 2.13(b), the term
                                                   Article XII of the ICE Bylaws was                    directors’’, ‘‘in the City of Atlanta, State          ‘‘indirect ownership’’ would be changed
                                                added in connection with the                            of Georgia,’’ and ‘‘as may be fixed from              to ‘‘beneficial ownership’’ for
                                                acquisition of NYSE National,                           time to time by the Board of Directors,               consistency.
                                                previously National Stock Exchange,                     or at such other place.’’ The text ‘‘as                  • The Exchange proposes to add a
                                                Inc., in 2016.26 The Exchange proposes                  shall be designated from time to time by              new defined term, ‘‘Proponent,’’ to
                                                to delete Article XII of the ICE Bylaws                 the Board of Directors and stated in the              capture both stockholders and Nominee
                                                in its entirety. Because the substance of               notice of the meeting.’’ would be                     Holders. Accordingly:
                                                Article XII would be addressed by the                   deleted and ‘‘or may’’ would be added                    • A new sentence would be added to
                                                proposed amendments to the ICE                          in its place. The second sentence would               Section 2.13(b)(iii) between the first and
                                                Certificate, Article XII would no longer                be deleted in its entirety.                           second sentences, stating that
                                                be necessary. Specifically,                                • In the third sentence, the text ‘‘The            ‘‘Stockholders and Nominee Holders
                                                   • the substance of Section 12.1(a)(1)                Board of Directors may, in its sole                   who bring matters before the annual
                                                of the ICE Bylaws would be addressed                    discretion, determine that any meeting                meeting pursuant to Section 2.13(b)(iii)
                                                in revised Article V, Section A.3.(c)(ii)               of stockholders shall’’ and ‘‘as                      are hereinafter referred to as
                                                of the ICE Certificate;                                 authorized by law’’ would be deleted.                 ‘Proponents’.’’
                                                                                                        The word ‘‘solely’’ would be added after                 • Throughout Section 2.13(b),
                                                   • the substance of Section 12.1(a)(2)                ‘‘instead be held’’ and the text ‘‘, in each          ‘‘stockholder,’’ ‘‘stockholders’’ and
                                                of the ICE Bylaws would be addressed                    case as may be designated by the Board                ‘‘stockholder’s’’ would be replaced with
                                                in revised Article V, Section A.3.(d)(ii)               of Directors from time to time and stated             ‘‘Proponent,’’ ‘‘Proponents’’ and
                                                of the ICE Certificate;                                 in the notice of meeting’’ added to the               ‘‘Proponent’s,’’ respectively.
                                                   • the substance of Section 12.1(b) of                end of the sentence.                                     • Throughout Section 2.13(b),
                                                the ICE Bylaws would be addressed in                       Section 2.7 relates to the quorum for              ‘‘Proponent’’ would replace the phrases
                                                revised Article V, Section B.3.(d) of the               stockholder meetings. The Exchange                    ‘‘stockholder or beneficial owner,’’
                                                ICE Certificate; and                                    proposes to conform the quorum                        ‘‘stockholder, by such beneficial
                                                   • the substance of Section 12.2 of the               requirements in the ICE Bylaws to those               owner,’’ ‘‘stockholder, such beneficial
                                                ICE Bylaws would be addressed in                        in the ICE Certificate. To do so, it                  owner,’’ ‘‘stockholder and by such
                                                revised Article X(B) of the ICE                         proposes to delete the first three                    beneficial owner, if any,’’ and
                                                Certificate.                                            sentences of Section 2.7 and replace it               ‘‘stockholder or any beneficial owner on
                                                                                                        with the sentence ‘‘Section B of Article              whose behalf a nomination or
                                                  25 NYSE Arca Equities Rule 14.1(b) provides,          IX of the certificate of incorporation sets           nominations are being made or business
                                                among other things, that the books and records of       forth the requirements for establishing a             or matter is being proposed.’’ The word
                                                NYSE Arca Equities are subject to the oversight of      quorum at meetings of stockholders of                 ‘‘Proponent’s’’ would replace the phrase
                                                the NYSE Arca pursuant to the Act, and that the
                                                books and records of NYSE Arca Equities shall be
                                                                                                        the Corporation.’’                                    ‘‘stockholder’s or such beneficial
                                                subject at all times to inspection and copying by          Section 2.13(b) sets forth the advance             owner’s.’’
                                                NYSE Arca. NYSE Arca Equities Rule 14.3(a)              notice requirements for stockholder                      • Presently, the requirement for
                                                provides, among other things, that the books and        proposals. The Exchange proposes to                   disclosing share ownership appears
                                                records of NYSE Arca, LLC are deemed to be the          make the following changes to Section                 three times: In the current third
                                                books and records of NYSE Arca and NYSE Arca
                                                Equities for purposes of and subject to oversight       2.13(b).                                              sentence, which sets forth the
                                                pursuant to the Exchange Act. See also CBOE                • In addition to stockholders of                   provisions for stockholder notices
                                                Holdings, Inc. Certificate of Incorporation, Article    record, the ICE Bylaws permit certain                 relating to director nominations, the
                                                Fifteenth (providing that the books and records of      beneficial holders (defined as ‘‘Nominee              current fourth sentence, which sets forth
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                                                a Regulated Securities Exchange Subsidiary shall be
                                                subject at all times to inspection by such              Holders’’) to nominate directors or bring             the provisions for stockholder notices
                                                subsidiary).                                            other matters for consideration before                relating to other matters, and the current
                                                  26 See Securities Exchange Act Releases No.           the Board of Directors meeting. The                   fifth sentence, which sets forth the
                                                79902 (January 30, 2017) 82 FR 9258 (February 3,        Exchange proposes to make simplifying                 information that a shareholder must
                                                2017) (SR–NSX–2016–16); and 79901 (January 30,
                                                2017), 82 FR 9251 (February 3, 2017) (SR–NYSE–
                                                                                                        wording changes in clause (iii) of the                include in any stockholder notice.
                                                2016–90, SR–NYSEArca2016–167, SR–NYSEMKT–               first sentence of Section 2.13(b), as                 Rather than keep the duplication,
                                                2016–122).                                              follows:                                              Exchange proposes to remove the


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                                                18056                            Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices

                                                requirement from the third and fourth                     In Section 3.12, relating to the                      Exchange Act definition of ‘‘exchange’’
                                                sentences and retain the requirement in                 conduct of meetings of committees of                    states that ‘‘exchange’’ ‘‘includes the
                                                clause (i) of the fifth sentence.                       the Board of Directors of ICE, a reference              market place and the market facilities
                                                Accordingly, the text ‘‘, the number and                to ‘‘Article II of these Bylaws’’ would be              maintained by such exchange.’’ 30
                                                class of all shares of each class of stock              corrected to read ‘‘this Article III of                 Accordingly, all market places and
                                                of the Corporation owned of record and                  these Bylaws.’’                                         market facilities maintained by an
                                                beneficially by such stockholder’’ would                  Section 3.14 sets forth considerations                Exchange would fall within the
                                                be deleted from the current third and                   directors must take into account in                     definition of Exchange and therefore
                                                fourth sentences.                                       discharging their responsibilities as                   would fall within the scope of the ICE
                                                   • In the current fourth sentence, the                members of the board of directors. The                  Certificate and ICE Bylaws. The
                                                requirement that a stockholder notice                   Exchange proposes to amend the last                     Exchange notes that the proposed
                                                include information regarding any                       sentence of Section 3.14(c), which limits               change would align Article V of the ICE
                                                material interest in the matter proposed                claims against directors, officers and                  Certificate with voting and ownership
                                                ‘‘(other than as a stockholder)’’ would                 employees of ICE and against ICE. The                   concentration limits in the certificates of
                                                be clarified by adding ‘‘or beneficial                  revised text would be expanded in                       incorporation of other publicly traded
                                                owner of stock’’ after ‘‘stockholder’’                  scope to apply to any ‘‘past or present                 companies that own one or more
                                                within the parenthetical, because a                     stockholder, employee, beneficiary,                     national securities exchanges, which do
                                                Proponent who is a nominee holder is                    agent, customer, creditor, community or                 not include references to subsidiaries
                                                not a stockholder.                                      regulatory authority or member thereof                  other than national securities
                                                   • In clause (i) of the current fifth                 or other person or entity,’’ and to protect             exchanges.31 NYSE Arca, as the national
                                                sentence, the text ‘‘such Proponent or’’                agents of ICE as well as directors,                     securities exchange, would retain the
                                                would be added before ‘‘any Associated                  officers and employees. These changes                   regulatory and self-regulatory
                                                Person.’’                                               would conform the provision to the                      responsibility for the NYSE Arca
                                                   • Clause (i) of the current sixth                    analogous statement in the governing                    options and equities markets.
                                                                                                        documents of other holding companies                       Similarly, as a result of the proposed
                                                sentence sets forth the meaning of
                                                                                                        of national securities exchanges, which                 use of ‘‘Exchanges’’ instead of ‘‘U.S.
                                                ‘‘Associated Person.’’ The Exchange
                                                                                                        are substantially similar.27                            Regulated Subsidiaries,’’ ICE Bylaws
                                                proposes to narrow the text to eliminate
                                                                                                          Finally, conforming changes would be                  Section 8.3 would no longer provide
                                                all beneficial owners of stock held of
                                                                                                        made to the title and date of the ICE                   that any U.S. Regulated Subsidiary is
                                                record or beneficially by the Proponent
                                                                                                        Bylaws.                                                 authorized to inspect the books and
                                                from the definition, and instead to cover
                                                                                                                                                                records of another U.S. Regulated
                                                only those beneficial owners on whose                   2. Statutory Basis                                      Subsidiary over which the first has
                                                behalf the stockholder notice is being
                                                                                                           The Exchange believes that the                       regulatory authority or oversight, adding
                                                delivered. Accordingly, the Exchange
                                                                                                        proposed rule change is consistent with                 further clarity and transparency to the
                                                proposes to replace the text
                                                                                                        Section 6(b) of the Exchange Act 28 in                  Exchange’s rules.32
                                                ‘‘stockholder or any beneficial owner on                                                                           Further, the proposed use of the
                                                                                                        general, and with Section 6(b)(1) 29 in
                                                whose behalf a nomination or                                                                                    defined term ‘‘Member’’ in place of the
                                                                                                        particular, in that it enables the
                                                nominations are being made or business                                                                          lists of categories of members and
                                                                                                        Exchange to be so organized as to have
                                                or matter is being proposed,’’ with                                                                             permit holders in Article V of the ICE
                                                                                                        the capacity to be able to carry out the
                                                ‘‘Proponent’’ and, in clause (i)(x),                                                                            Certificate would simplify the
                                                                                                        purposes of the Exchange Act and to
                                                replace the text ‘‘owned of record or                                                                           provisions without substantive change,
                                                                                                        comply, and to enforce compliance by
                                                beneficially by such stockholder or by                                                                          thereby further adding clarity and
                                                                                                        its exchange members and persons
                                                such beneficial owner’’ with ‘‘on whose                                                                         transparency to the Exchange’s rules
                                                                                                        associated with its exchange members,
                                                behalf such Proponent is delivering a                                                                           and aligning the provision in the ICE
                                                                                                        with the provisions of the Exchange Act,
                                                Stockholder Notice.’’                                                                                           Certificate with the voting and
                                                                                                        the rules and regulations thereunder,
                                                Additional Proposed Changes                             and the rules of the Exchange.                          ownership concentration limits in the
                                                                                                           In particular, the Exchange believes                 certificates of incorporation of other
                                                  In addition to the changes proposed                                                                           publicly traded companies that own one
                                                                                                        that the proposed amendments to
                                                above, the Exchange proposes to amend                                                                           or more national securities exchanges,
                                                                                                        replace references to the U.S. Regulated
                                                several additional sections of the ICE                                                                          which use a similar description of
                                                                                                        Subsidiaries and to the NYSE, NYSE
                                                Bylaws.                                                                                                         membership.33 Similarly, the proposed
                                                                                                        MKT, NYSE Arca, NYSE Arca Equities
                                                  The ICE Bylaws refer to a ‘‘Vice                                                                              use of the defined term ‘‘Intermediate
                                                                                                        and NYSE Arca, LLC with references to
                                                Chairman of the Board.’’ However, the                                                                           Holding Company’’ in place of the list
                                                                                                        an ‘‘Exchange’’ or the ‘‘Exchanges,’’ as
                                                Board of Directors of ICE has not had a                                                                         of intermediate holding companies in
                                                                                                        appropriate, would contribute to the
                                                Vice Chairman since the sale of the                                                                             Article V of the ICE Certificate and
                                                                                                        orderly operation of the Exchange by
                                                Euronext business in 2014. Accordingly,                                                                         Section 3.14 of the ICE Bylaws would
                                                                                                        adding clarity and transparency to the
                                                in Sections 2.9, 3.6(b) and 3.8, the
                                                                                                        Exchange’s rules by eliminating
                                                Exchange proposes to replace ‘‘Vice                                                                               30 15 U.S.C. 78c(a)(1).
                                                                                                        references to entities that are not
                                                Chairman of the Board’’ with ‘‘lead                                                                               31 See note 11, supra.
                                                                                                        national securities exchanges in the ICE
                                                independent director.’’ As a result, the                                                                          32 As noted above, the ICE Bylaws would no
                                                                                                        Certificate and ICE Bylaws. The
                                                lead independent director would                                                                                 longer provide that NYSE Arca may inspect the
                                                preside over meetings of stockholders in                                                                        books and records of NYSE Arca Equities or NYSE
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                                                                                                          27 See Amended and Restated Bylaws of Bats
                                                                                                                                                                Arca, LLC. However, the proposed change would
                                                the absence of the Chairman of the                      Global Markets, Inc., Article XII, Section 12.01;       have no substantive effect, because NYSE Arca
                                                Board (Section 2.9), have the authority                 Amended and Restated Limited Liability Company          would retain its authority pursuant to NYSE Arca
                                                to call a special meeting of the Board of               Agreement of BOX Holdings Group LLC, Article 4,         Equities Rules 14.1 and 14.3. NYSE, NYSE MKT,
                                                                                                        Section 4.12; Bylaws of IEX Group, Inc., Section 34;    NYSE Arca and NYSE National do not have
                                                Directors (Section 3.6(b)) and would                    and Amended and Restated Bylaws of Miami                regulatory authority or oversight over each other,
                                                preside over meetings of the Board of                   International Holdings, Inc., Article VII, Section 1.   and so the proposed change would have no effect
                                                Directors in the absence of the Chairman                  28 15 U.S.C. 78f(b).                                  on those entities’ rights.
                                                of the Board (Section 3.8).                               29 15 U.S.C. 78f(b)(1).                                 33 See note 20, supra.




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                                                                                    Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices                                            18057

                                                simplify the provisions without                            of national securities exchanges, which                 changes to the ICE governing
                                                substantive change, thereby further                        are substantially similar.35                            documents. The Exchange believes that
                                                adding clarity and transparency to the                        The Exchange believes that the                       the proposed rule change will serve to
                                                Exchange’s rules.                                          proposed amendments to remove                           promote clarity and consistency,
                                                                                                           references to NYSE Market, NYSE                         thereby reducing burdens on the
                                                   For similar reasons, the Exchange also
                                                                                                           Regulation and the Vice Chairman and                    marketplace and facilitating investor
                                                believes that this filing furthers the
                                                                                                           to remove the cross reference to Section                protection. The proposed rule change
                                                objectives of Section 6(b)(5) of the
                                                                                                           11.2(b) of the ICE Bylaws from Article                  would result in no concentration or
                                                Exchange Act 34 because the proposed
                                                                                                           X of the ICE Certificate would remove                   other changes of ownership of
                                                rule change would be consistent with
                                                                                                           impediments to, and perfect the                         exchanges.
                                                and would create a governance and                          mechanism of a free and open market
                                                regulatory structure that is designed to                   and a national market system and, in                    C. Self-Regulatory Organization’s
                                                prevent fraudulent and manipulative                        general, protect investors and the public               Statement on Comments on the
                                                acts and practices, to promote just and                    interest because the changes would                      Proposed Rule Change Received From
                                                equitable principles of trade, to foster                   eliminate obsolete references, thereby                  Members, Participants, or Others
                                                cooperation and coordination with                          reducing potential confusion. Market                      No written comments were solicited
                                                persons engaged in regulating, clearing,                   participants and investors would not be                 or received with respect to the proposed
                                                settling, processing information with                      harmed and in fact could benefit from                   rule change.
                                                respect to, and facilitating transactions                  the increased clarity and transparency
                                                in securities, to remove impediments to,                   in the ICE Certificate and ICE Bylaws.                  III. Date of Effectiveness of the
                                                and perfect the mechanism of a free and                    Such increased clarity and transparency                 Proposed Rule Change and Timing for
                                                open market and a national market                          would ensure that persons subject to the                Commission Action
                                                system and, in general, to protect                         Exchange’s jurisdiction, regulators, and                   Within 45 days of the date of
                                                investors and the public interest.                         the investing public can more easily                    publication of this notice in the Federal
                                                   Specifically, the proposed                              navigate and understand the ICE                         Register or up to 90 days (i) as the
                                                amendments (1) replacing references to                     governing documents.                                    Commission may designate if it finds
                                                the U.S. Regulated Subsidiaries and to                        The Exchange believes that the                       such longer period to be appropriate
                                                the NYSE, NYSE MKT, NYSE Arca,                             proposed amendments to Article II of                    and publishes its reasons for so finding
                                                NYSE Arca Equities and NYSE Arca,                          the ICE Bylaws, regarding meetings of                   or (ii) as to which the self-regulatory
                                                LLC with references to an ‘‘Exchange’’                     stockholders, would also remove                         organization consents, the Commission
                                                or the ‘‘Exchanges,’’ as appropriate; (2)                  impediments to, and perfect the                         will:
                                                using ‘‘Member’’ in place of the lists of                  mechanism of a free and open market                        (A) By order approve or disapprove
                                                categories of members and permit                           and a national market system and, in                    the proposed rule change, or
                                                holders in Article V of the ICE                            general, protect investors and the public                  (B) institute proceedings to determine
                                                Certificate; (3) using ‘‘Intermediate                      interest because the changes would                      whether the proposed rule change
                                                Holding Company’’ in place of the list                     increase the clarity of the relevant                    should be disapproved.
                                                of intermediate holding companies in                       sections of Article II, thereby reducing                IV. Solicitation of Comments
                                                Article V of the ICE Certificate and                       potential confusion. Market participants
                                                Section 3.14 of the ICE Bylaws; and (4)                    and investors would not be harmed and                      Interested persons are invited to
                                                removing the ability of a U.S. Regulated                   in fact could benefit from the increased                submit written data, views, and
                                                Subsidiary to inspect the books and                        clarity and transparency regarding the                  arguments concerning the foregoing,
                                                records of other U.S. Regulated                            location of stockholder meetings and                    including whether the proposed rule
                                                Subsidiaries in ICE Bylaws Section 8.3                     advance notice requirements, and the                    change, as modified by Amendment No.
                                                would remove impediments to and                            conformance of the quorum                               1, is consistent with the Act. Comments
                                                perfect the mechanism of a free and                        requirements with those in the ICE                      may be submitted by any of the
                                                open market by simplifying and                             Certificate, and so would more easily                   following methods:
                                                streamlining the Exchange’s rules,                         navigate and understand the ICE                         Electronic Comments
                                                thereby ensuring that persons subject to                   Bylaws.
                                                                                                                                                                     • Use the Commission’s Internet
                                                the Exchange’s jurisdiction, regulators,                   B. Self-Regulatory Organization’s                       comment form (http://www.sec.gov/
                                                and the investing public can more easily                   Statement on Burden on Competition                      rules/sro.shtml); or
                                                navigate and understand the ICE                                                                                      • Send an email to rule-comments@
                                                governing documents.                                          The Exchange does not believe that
                                                                                                           the proposed rule change will impose                    sec.gov. Please include File Number SR–
                                                   The Exchange believes that the                          any burden on competition that is not                   NYSEMKT–2017–17 on the subject line.
                                                proposed amendments to the last                            necessary or appropriate in furtherance
                                                sentence of Section 3.14(c) of the ICE                                                                             Paper Comments
                                                                                                           of the purposes of the Exchange Act.
                                                Bylaws, which limits claims against                        The proposed rule change is not                            • Send paper comments in triplicate
                                                directors, officers and employees of ICE                   designed to address any competitive                     to Secretary, Securities and Exchange
                                                and against ICE, would remove                              issue but rather update and streamline                  Commission, 100 F Street NE.,
                                                impediments to, and perfect the                            the ICE Certificate and Bylaws, delete                  Washington, DC 20549–1090.
                                                mechanism of a free and open market                        obsolete or unnecessary references and                  All submissions should refer to File
                                                and a national market system and, in                                                                               Number SR–NYSEMKT–2017–17. This
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                                                                                                           make other simplifying or clarifying
                                                general, protect investors and the public                                                                          file number should be included on the
                                                interest because the proposed changes                        35 See Amended and Restated Bylaws of Bats            subject line if email is used. To help the
                                                would conform the provision to the                         Global Markets, Inc., Article XII, Section 12.01;       Commission process and review your
                                                analogous statement in the governing                       Amended and Restated Limited Liability Company          comments more efficiently, please use
                                                documents of other holding companies                       Agreement of BOX Holdings Group LLC, Article 4,
                                                                                                           Section 4.12; Bylaws of IEX Group, Inc., Section 34;
                                                                                                                                                                   only one method. The Commission will
                                                                                                           and Amended and Restated Bylaws of Miami                post all comments on the Commission’s
                                                  34 15   U.S.C. 78f(b)(5).                                International Holdings, Inc., Article VII, Section 1.   Internet Web site (http://www.sec.gov/


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                                                18058                             Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices

                                                rules/sro.shtml). Copies of the                          list and trade shares (‘‘Shares’’) of the              the Exchange filed Amendment No. 3 to
                                                submission, all subsequent                               United States 3x Oil Fund (‘‘Oil Fund’’)               the proposed rule change.8 The
                                                amendments, all written statements                       and United States 3x Short Oil Fund                    Commission received no comments on
                                                with respect to the proposed rule                        (‘‘Short Oil Fund,’’ and together with                 the proposed rule change. This order
                                                change that are filed with the                           the Oil Fund, ‘‘Funds’’) under NYSE                    approves the proposed rule change, as
                                                Commission, and all written                              Arca Equities Rule 8.200, Commentary                   modified by Amendments No. 2 and No.
                                                communications relating to the                           .02. The proposed rule change was                      3.
                                                proposed rule change between the                         published for comment in the Federal
                                                Commission and any person, other than                    Register on January 11, 2017.4 On                      II. Description of the Proposal 9
                                                those that may be withheld from the                      February 22, 2017, the Commission                         The Exchange proposes to list and
                                                public in accordance with the                            designated a longer period within which                trade the Shares under NYSE Arca
                                                provisions of 5 U.S.C. 552, will be                      to approve the proposed rule change,                   Equities Rule 8.200, Commentary .02,
                                                available for Web site viewing and                       disapprove the proposed rule change, or                which governs the listing and trading of
                                                printing in the Commission’s Public                      institute proceedings to determine                     Trust Issued Receipts.10 Each Fund is a
                                                Reference Room, 100 F Street NE.,                        whether to disapprove the proposed                     series of the USCF Funds Trust
                                                Washington, DC 20549 on official                         rule change,5 pursuant to Section                      (‘‘Trust’’), a Delaware statutory trust.11
                                                business days between the hours of                       19(b)(2) of the Act.6 On March 13, 2017,               The Trust and the Funds are managed
                                                10:00 a.m. and 3:00 p.m. Copies of the                   the Exchange filed Amendment No. 1 to                  and controlled by United States
                                                filing also will be available for                        the proposed rule change. On March 29,                 Commodity Funds LLC (‘‘USCF’’). USCF
                                                inspection and copying at the principal                  2017, the Exchange filed Amendment                     is registered as a commodity pool
                                                office of the Exchange. All comments                     No. 2 to the proposed rule change,                     operator with the Commodity Futures
                                                received will be posted without change;                  which replaced and superseded the                      Trading Commission and is a member of
                                                the Commission does not edit personal                    proposed rule change as modified by                    the National Futures Association.
                                                identifying information from                             Amendment No. 1.7 On April 7, 2017,                    Brown Brothers Harriman & Co. is the
                                                submissions. You should submit only                                                                             custodian, registrar, transfer agent, and
                                                                                                            4 See Securities Exchange Act Release No. 79742
                                                information that you wish to make                                                                               administrator for the Funds. ALPS Fund
                                                                                                         (January 5, 2017), 82 FR 3366.
                                                available publicly. All submissions                         5 See Securities Exchange Act Release No. 80079
                                                                                                                                                                Services, Inc. is the marketing agent for
                                                should refer to File Number SR–                          (February 27, 2017), 82 FR 11955 (designating April    the Funds.
                                                NYSEMKT–2017–17 and should be                            11, 2017 as the date by which the Commission
                                                                                                                                                                Overview of the Funds
                                                submitted on or before May 5, 2017.                      would approve the proposal, disapprove the
                                                                                                         proposal, or institute proceedings to approve or         The investment objective of the Oil
                                                  For the Commission, by the Division of                 disapprove the proposal).
                                                Trading and Markets, pursuant to delegated                  6 15 U.S.C. 78s(b)(2).
                                                                                                                                                                Fund will be for the daily changes in
                                                authority.36                                                7 In Amendment No. 2, the Exchange: (1)             percentage terms of its Shares’ per share
                                                Eduardo A. Aleman,                                       Provided additional detail regarding the Funds’        NAV to reflect three times (3x) the daily
                                                Assistant Secretary.                                     Benchmark Oil Futures Contract; (2) stated that the    change in percentage terms of the price
                                                                                                         CME Group, Inc. (‘‘CME’’) is a member of the
                                                [FR Doc. 2017–07532 Filed 4–13–17; 8:45 am]              Intermarket Surveillance Group; (3) provided              8 In Amendment No. 3, the Exchange: (1) Clarified
                                                BILLING CODE 8011–01–P                                   additional clarification regarding the timing of the
                                                                                                                                                                that the futures contracts that trade under the
                                                                                                         daily rebalancing of the Funds’ holdings; (4)
                                                                                                                                                                symbol ‘‘CL’’ are WTI Crude Oil futures; and (2)
                                                                                                         provided additional clarification and specificity
                                                                                                                                                                stated that the contents of each Fund’s portfolio
                                                                                                         regarding the instruments in which the Funds may
                                                SECURITIES AND EXCHANGE                                  invest; (5) provided additional information            would be disclosed to all market participants at the
                                                                                                                                                                same time. Amendment No. 3 is not subject to
                                                COMMISSION                                               regarding accountability level requirements
                                                                                                                                                                notice and comment because it is a technical
                                                                                                         applicable to the Funds; (6) supplemented the
                                                [Release No. 34–80427; File No. SR–                      description of how certain investments will be         amendment that does not materially alter the
                                                NYSEArca–2016–173]                                       valued for computing a Fund’s net asset value          substance of the proposed rule change or raise any
                                                                                                         (‘‘NAV’’); (7) provided additional clarification       novel regulatory issues.
                                                                                                                                                                   9 A more detailed description of the Funds, the
                                                Self-Regulatory Organizations; NYSE                      regarding the calculation of the Indicative Fund
                                                                                                         Value (‘‘IFV’’) for a Fund; (8) represented that       Shares, and the Benchmark Oil Futures Contract, as
                                                Arca, Inc.; Order Approving a                            certain aspects of the Funds’ creation and             well as investment risks, creation and redemption
                                                Proposed Rule Change, as Modified by                     redemption procedures will not impact market           procedures, NAV calculation, availability of values
                                                Amendments No. 2 and No. 3 Thereto,                      maker arbitrage opportunities; (9) provided            and other information regarding the Funds’
                                                                                                         information regarding the availability of the          portfolio holdings, and fees, among other things, is
                                                To List and Trade Shares of the United                                                                          included in the Registration Statements (defined
                                                                                                         Benchmark Oil Futures Contract trading prices
                                                States 3x Oil Fund and United States                     prior to the New York Mercantile Exchange closing      below) and Amendments No. 2 and No. 3, as
                                                3x Short Oil Fund Under NYSE Arca                        time and end of day settlement price once              applicable. See infra note 11, and supra notes 7 and
                                                Equities Rule 8.200, Commentary .02                      published by the New York Mercantile Exchange          8, respectively.
                                                                                                                                                                   10 Commentary .02 to NYSE Arca Equities Rule
                                                                                                         after its closing; (10) removed statements regarding
                                                April 11, 2017.                                          the rejection or suspension of redemption orders;      8.200 applies to Trust Issued Receipts that invest
                                                                                                         (11) provided additional detail regarding the          in ‘‘Financial Instruments.’’ The term ‘‘Financial
                                                I. Introduction                                          availability of information regarding the Funds and    Instruments,’’ as defined in Commentary .02(b)(4) to
                                                                                                         their portfolio holdings; (12) represented that the    NYSE Arca Equities Rule 8.200, means any
                                                   On December 23, 2016, NYSE Arca,                      applicability of Exchange listing rules specified in   combination of investments, including cash;
                                                Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed               the proposed rule change shall constitute continued    securities; options on securities and indices; futures
                                                with the Securities and Exchange                         listing requirements for listing the Shares on the     contracts; options on futures contracts; forward
                                                Commission (‘‘Commission’’), pursuant                    Exchange; (13) supplemented its description of the     contracts; equity caps, collars, and floors; and swap
                                                                                                         information that the Exchange will provide to          agreements.
                                                to Section 19(b)(1) 1 of the Securities                  Equity Trading Permit Holders in an Information           11 The Trust is registered under the Securities Act
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                                                Exchange Act of 1934 (‘‘Act’’ or                         Bulletin; and (14) made other technical                of 1933. The Trust filed with the Commission a
                                                ‘‘Exchange Act’’) 2 and Rule 19b–4                       amendments. The amendments to the proposed rule        registration statement on Form S–1 under the
                                                thereunder,3 a proposed rule change to                   change are available at: https://www.sec.gov/          Securities Act of 1933 (15 U.S.C. 77a) relating to the
                                                                                                         comments/sr-nysearca-2016-173/                         United States 3x Oil Fund (File No. 333–214825)
                                                  36 17
                                                                                                         nysearca2016173.htm. Amendment No. 2 is not            and the United States 3x Short Oil Fund (File No.
                                                        CFR 200.30–3(a)(12).                             subject to notice and comment because it is a          333–214881) (each a ‘‘Registration Statement’’ and,
                                                  1 15 U.S.C. 78s(b)(1).                                 technical amendment that does not materially alter     collectively, ‘‘Registration Statements’’) on
                                                  2 15 U.S.C. 78a.
                                                                                                         the substance of the proposed rule change or raise     November 29, 2016 and December 2, 2016,
                                                  3 17 CFR 240.19b–4.                                    any novel regulatory issues.                           respectively.



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Document Created: 2017-04-14 00:56:19
Document Modified: 2017-04-14 00:56:19
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 Citation82 FR 18051 

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