83 FR 20901 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Certificate of Incorporation of Its Parent Company NYSE Group, Inc.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 89 (May 8, 2018)

[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Notices]
[Pages 20901-20904]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09765]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83161; File No. SR-NYSENAT-2018-05]


Self-Regulatory Organizations; NYSE National, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the 
Certificate of Incorporation of Its Parent Company NYSE Group, Inc.

May 3, 2018.
    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 April 25, 2018, NYSE National, Inc. (the ``Exchange'' or 
``NYSE National'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Article X of the certificate of 
incorporation of its parent company NYSE Group, Inc. (``NYSE Group'') 
and make certain technical and conforming changes. The proposed rule 
change is available on the Exchange's website at www.nyse.com, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries,

[[Page 20902]]

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 Article X (Confidential Amendment) 
of the Sixth Amended and Restated Certificate of Incorporation of NYSE 
Group (``NYSE Group Certificate'') and make certain technical and 
conforming changes.
    NYSE Group owns all of the equity interest in the Exchange and its 
national securities exchange affiliates, the New York Stock Exchange 
LLC (``NYSE LLC''), NYSE Arca, Inc. (``NYSE Arca''), and NYSE American 
LLC (``NYSE American''). In turn, NYSE Group is a wholly-owned 
subsidiary of NYSE Holdings LLC (``NYSE Holdings''), which is wholly 
owned by Intercontinental Exchange Holdings, Inc. (``ICE Holdings''). 
ICE Holdings is wholly owned by Intercontinental Exchange Inc. 
(``ICE'').\4\
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    \4\ ICE is a publicly traded company listed on the NYSE.
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    In 2017, the Exchange amended the certificates of incorporation, 
bylaws, and operating agreements, as applicable, of ICE, ICE Holdings, 
NYSE Holdings and NYSE Group (collectively, the ``Governing 
Documents'').\5\ The changes to the Governing Documents included, among 
other things, amendments streamlining references to ICE subsidiaries 
that either are or control national securities exchanges, deleting 
references to other ICE subsidiaries, and amending provisions relating 
to confidential information.\6\ As a result of the changes, 
``Exchange'' is defined in each Governing Document as a national 
securities exchange registered under Section 6 of the Exchange Act \7\ 
that is directly or indirectly controlled by the relevant entity.\8\
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    \5\ The Governing Documents are the Fourth Amended and Restated 
Certificate of Incorporation of Intercontinental Exchange, Inc. 
(``ICE Certificate''); Eighth Amended and Restated Bylaws of 
Intercontinental Exchange, Inc. (``ICE Bylaws''); Ninth Amended and 
Restated Certificate of Incorporation of Intercontinental Exchange 
Holdings, Inc. (``ICE Holdings Certificate''); Sixth Amended and 
Restated Bylaws of Intercontinental Exchange Holdings, Inc. (``ICE 
Holdings Bylaws''); Ninth Amended and Restated Limited Liability 
Company Agreement of NYSE Holdings LLC (``NYSE Holdings Operating 
Agreement''); Fourth Amended and Restated Bylaws of NYSE Group, Inc. 
(``NYSE Group Bylaws''); and the NYSE Group Certificate.
    \6\ See Securities Exchange Act Release Nos. 82084 (November 15, 
2017), 82 FR 55460 (November 21, 2017) (SR-NYSENAT-2017-05) (notice 
of filing and immediate effectiveness of proposed rule change to 
amend the governing documents of the Exchange's intermediate parent 
companies) (``Holding Companies Release''); and 80752 (May 24, 
2017), 82 FR 25018 (May 31, 2017) (SR-NYSE-2017-13; SR-NYSEArca-
2017-29; SR-NYSEMKT-2017-17; SR-NYSENAT-2017-01) (order approving 
proposed rule changes to amend the certificate and bylaws of the 
exchange's ultimate parent company) (``Parent Company Release'').
    \7\ 15 U.S.C. 78f.
    \8\ See Holding Companies Release, supra note 6, at 55461; ICE 
Certificate, Article V, Section A(3)(a); ICE Bylaws, Article III, 
Section 3.15; ICE Holdings Certificate, Article V, Section A(1); ICE 
Holdings Bylaws, Article III, Section 3.15; NYSE Holdings Operating 
Agreement, Article 1, Section 1.1; NYSE Group Bylaws, Article VII, 
Article 7.9(b); and NYSE Group Certificate, Article IV, Section 
4(b)(1)(A).
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    In making such changes, lists of specific entities were replaced 
with ``Exchange'' or ``Exchanges,'' as applicable.\9\ For example, in 
Article XII, clause (b) of the NYSE Group Certificate, ``the boards of 
directors of New York Stock Exchange, NYSE Arca, NYSE Arca Equities, 
NYSE MKT and NYSE National or the boards of directors of their 
successors'' was amended to ``the boards of directors of each 
Exchange.'' \10\
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    \9\ See Holding Companies Release, supra note 6, at 55461, and 
Parent Company Release, supra note 6, at 25019. Similarly, the terms 
``U.S. Regulated Subsidiary,'' ``U.S. Regulated Subsidiaries,'' 
``Regulated Subsidiary,'' and ``Regulated Subsidiaries'' were 
replaced with ``Exchange'' or ``Exchanges,'' as applicable.
    \10\ See Holding Companies Release, supra note 6, note 12.
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    However, the NYSE Group Certificate retains one list of specific 
entities, which it proposes to amend now. Specifically, in the first 
sentence of Article X of the NYSE Group Certificate, the Exchange 
proposes to replace ``New York Stock Exchange, NYSE Arca, NYSE Arca 
Equities, NYSE MKT and NYSE National'' with ``any Exchange, in each 
case to the extent that such entities continue to be controlled, 
directly or indirectly, by the Corporation''.\11\
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    \11\ The Exchange's affiliates NYSE LLC, NYSE American, and NYSE 
Arca have each submitted substantially the same proposed rule change 
to propose the changes described herein. See SR-NYSE-2018-18, SR-
NYSEAmer-2018-16, and SR-NYSEArca-2018-26.
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    The proposed change would not have a substantive effect on what 
entities the provision covers. As national securities exchanges 
registered under Section 6 of the Exchange Act \12\ that are directly 
controlled by NYSE Group, each of the NYSE, NYSE Arca, NYSE MKT (now 
NYSE American LLC) \13\ and NYSE National are ``Exchanges'' within the 
scope of the definition. The reference to NYSE Arca Equities is 
obsolete, as it has been merged out of existence.\14\ As a result, the 
change is non-substantive.
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    \12\ 15 U.S.C. 78f.
    \13\ ``NYSE MKT LLC'' changed its name to ``NYSE American LLC'' 
in 2017. See Securities Exchange Act Release Nos. 80283 (March 21, 
2017), 82 FR 15244 (March 27, 2017) (SR-NYSEMKT-2017-14).
    \14\ See Securities Exchange Act Release No. 81419 (August 17, 
2017), 82 FR 40044 (August 23, 2017) (SR-NYSEArca-2017-40).
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    The Exchange notes that the proposed amendment would make the first 
sentence of Article X of the NYSE Group Certificate more consistent 
with the use of ``Exchange'' throughout the Governing Documents, 
particularly in the confidential information provisions of the ICE 
Bylaws, the ICE Holdings Bylaws, and the NYSE Holdings Operating 
Agreement, all of which have the text ``any Exchange, in each case to 
the extent that such entities continue to be controlled, directly or 
indirectly, by the'' Corporation or Company, as applicable.\15\
    In addition, technical and conforming changes would be made to the 
title, recitals, effective time, date and signature line of the NYSE 
Group Certificate.
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    \15\ See ICE Bylaws, Article VIII, Section 8.1; ICE Holdings 
Bylaws, Article VIII, Section 8.1; and NYSE Holdings Operating 
Agreement, Article XII, Section 12.1. See also Holding Companies 
Release, supra note 6, at 55463-55464.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \16\ in general, and with Section 
6(b)(1) \17\ 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.
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    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(1).
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    The Exchange believes that the proposed rule change would enable 
the Exchange to continue to be so organized as to have the capacity to 
carry out the purposes of the Exchange Act and comply and enforce 
compliance with the provisions of the Exchange Act by its members and 
persons associated with its members, because the proposed change would 
add further clarity and transparency to the Exchange's rules without 
having a substantive effect on which entities the provision would 
cover. As national securities exchanges registered under Section 6 of 
the Exchange Act \18\ that are directly controlled by NYSE Group, each 
of the NYSE LLC, NYSE Arca, NYSE American and NYSE National fall within 
the scope of the definition of ``Exchange.'' In

[[Page 20903]]

addition, removing the obsolete reference to NYSE Arca Equities would 
contribute to the orderly operation of the Exchange by adding clarity 
and transparency to the Exchange's rules. The Exchange believes that 
the proposed technical and conforming changes to the title, recitals, 
effective time, date and signature line of the NYSE Group Certificate 
would contribute to the orderly operation of the Exchange by adding 
clarity and transparency to its rules.
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    \18\ 15 U.S.C. 78f.
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    Further, the Exchange notes that the Exchange Act definition of 
``exchange'' states that ``exchange'' ``includes the market place and 
the market facilities maintained by such exchange.'' \19\ Accordingly, 
any market places and market facilities maintained by the Exchange 
would fall within the definition of ``Exchange'' and therefore would 
fall within the scope of Article X of the NYSE Group Certificate.
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    \19\ 15 U.S.C. 78c(a)(1).
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    For similar reasons, the Exchange also believes that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\20\ in that 
it is designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system and, 
in general, to protect investors and the public interest.
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    \20\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system by simplifying and streamlining the Exchange's 
rules and removing an obsolete reference, thereby ensuring that market 
participants can more easily navigate, understand and comply with its 
rules. In this manner, the proposed change would ensure that persons 
subject to the Exchange's jurisdiction, regulators, and the investing 
public can more easily navigate and understand the NYSE Group 
Certificate.
    In addition, the Exchange believes that the proposed rule change 
would remove impediments to and perfect the mechanism of a free and 
open market and a national market system, because the proposed change 
would conform the text of Article X with the use of ``Exchange'' 
throughout the Governing Documents, generally, and with the 
confidential information provisions of the ICE Bylaws, the ICE Holdings 
Bylaws, and the NYSE Holdings Operating Agreement, more specifically. 
As a result, the Governing Documents would be more consistent and 
persons subject to the Exchange's jurisdiction, regulators, and the 
investing public could more easily navigate and understand the NYSE 
Group Certificate and the other Governing Documents.

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 is 
meant to update and streamline the NYSE Group Certificate to make it 
more consistent with the use of ``Exchange'' throughout the Governing 
Documents and the confidential information provisions in the ICE 
Bylaws, the ICE Holdings Bylaws, and the NYSE Holdings Operating 
Agreement. 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

    Because the foregoing proposed rule change does not:
    (i) Significantly affect the protection of investors or the public 
interest;
    (ii) impose any significant burden on competition; and
    (iii) become operative for 30 days from the date on which it was 
filed, or such shorter time as the Commission may designate, it has 
become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 
19b-4(f)(6) thereunder.\21\
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    \21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSENAT-2018-05 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSENAT-2018-05. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSENAT-2018-05, and

[[Page 20904]]

should be submitted on or before May 29, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-09765 Filed 5-7-18; 8:45 am]
 BILLING CODE 8011-01-P