[Federal Register Volume 86, Number 18 (Friday, January 29, 2021)]
[Notices]
[Pages 7590-7597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01941]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90985; File No. 4-523]


Program for Allocation of Regulatory Responsibilities Pursuant To 
Rule 17d-2; Notice of Filing and Order Approving and Declaring 
Effective an Amended Plan for the Allocation of Regulatory 
Responsibilities Between the Financial Industry Regulatory Authority, 
Inc. and NYSE Arca, Inc.

January 25, 2021.
    Notice is hereby given that the Securities and Exchange Commission 
(``Commission'') has issued an Order, pursuant to Section 17(d) of the 
Securities Exchange Act of 1934 (``Act''),\1\ approving and declaring 
effective an amendment to the plan for allocating regulatory 
responsibility (``Plan'') filed on December 18, 2020, pursuant to Rule 
17d-2 of the Act,\2\ by the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') and NYSE Arca, Inc. (``NYSE Arca'') (collectively, 
``Participating Organizations'' or ``parties''). This agreement amends 
and restates the agreement entered into between the parties on February 
9, 2007, entitled ``Agreement Between the National Association of 
Securities Dealers, Inc. and NYSE Arca, Inc. Pursuant to SEA Rule 17d-2 
Under the Securities Exchange Act of 1934,'' and any subsequent 
amendments thereafter.
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    \1\ 15 U.S.C. 78q(d).
    \2\ 17 CFR 240.17d-2.
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I. Introduction

    Section 19(g)(1) of the Act,\3\ among other things, requires every 
self-regulatory organization (``SRO'') registered as either a national 
securities exchange or national securities association to examine for, 
and enforce compliance by, its members and persons associated with its 
members with the Act, the rules and regulations thereunder, and the 
SRO's own rules, unless the SRO is relieved of this responsibility 
pursuant to Section 17(d) \4\ or Section 19(g)(2) \5\ of the Act. 
Without this relief, the statutory obligation of each individual SRO 
could result in a pattern of multiple examinations of broker-dealers 
that maintain memberships in more than one SRO (``common members''). 
Such regulatory duplication would add unnecessary expenses for common 
members and their SROs.
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    \3\ 15 U.S.C. 78s(g)(1).
    \4\ 15 U.S.C. 78q(d).
    \5\ 15 U.S.C. 78s(g)(2).
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    Section 17(d)(1) of the Act \6\ was intended, in part, to eliminate 
unnecessary multiple examinations and regulatory duplication.\7\ With 
respect to a common member, Section 17(d)(1) authorizes the Commission, 
by rule or order, to relieve an SRO of the responsibility to receive 
regulatory reports, to examine for and enforce compliance with 
applicable statutes, rules, and regulations, or to perform other 
specified regulatory functions.
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    \6\ 15 U.S.C. 78q(d)(1).
    \7\ See Securities Act Amendments of 1975, Report of the Senate 
Committee on Banking, Housing, and Urban Affairs to Accompany S. 
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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    To implement Section 17(d)(1), the Commission adopted two rules: 
Rule 17d-1 and Rule 17d-2 under the Act.\8\ Rule 17d-1 authorizes the 
Commission to name a single SRO as the designated examining authority 
(``DEA'') to examine common members for compliance with the financial 
responsibility requirements imposed by the Act, or by Commission or SRO 
rules.\9\ When an SRO has been named as a common member's DEA, all 
other SROs to which the common member belongs are relieved of the 
responsibility to examine the firm for compliance with the applicable 
financial responsibility rules. On its face, Rule 17d-1 deals only with 
an SRO's obligations to enforce member compliance with financial 
responsibility requirements. Rule 17d-1 does not relieve an SRO from 
its obligation to examine a common member for compliance with its own 
rules and provisions of the federal securities laws governing matters 
other than financial responsibility, including sales practices and 
trading activities and practices.
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    \8\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \9\ See Securities Exchange Act Release No. 12352 (April 20, 
1976), 41 FR 18808 (May 7, 1976).
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    To address regulatory duplication in these and other areas, the 
Commission adopted Rule 17d-2 under the Act.\10\ Rule 17d-2 permits 
SROs to propose joint plans for the allocation of regulatory 
responsibilities with respect to their common members. Under paragraph 
(c) of Rule 17d-2, the Commission may declare such a plan effective if, 
after providing for appropriate notice and opportunity for comment, it 
determines that the plan is necessary or appropriate in the public 
interest and for the protection of investors, to foster cooperation and 
coordination among the SROs, to remove impediments to, and foster the 
development of, a national market system and a national clearance and 
settlement system, and is in conformity with the factors set forth in 
Section 17(d) of the Act. Commission approval of a plan filed pursuant 
to Rule 17d-2 relieves an SRO of those regulatory responsibilities 
allocated by the plan to another SRO.
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    \10\ See Securities Exchange Act Release No. 12935 (October 28, 
1976), 41 FR 49091 (November 8, 1976).
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II. The Plan

    On August 31, 2006, the Commission declared effective the Plan 
entered into between FINRA and NYSE Arca for allocating regulatory 
responsibility pursuant to Rule 17d-2.\11\ On March 22, 2007, the 
Commission approved an amendment to the Plan that (1) eliminated 
paragraph 11 of the Plan that allocated to FINRA the responsibility to 
receive and act upon requests for extension of time pursuant to Federal 
Reserve Regulation T and Rule 15c3-3 under the Act, and (2) changed 
from ``monthly'' to ``upon request'' the obligation of FINRA to share 
information with NYSE Arca regarding notice of changes in allied 
members, partners, officers, registered personnel and other persons, 
and the opening, address change, and termination of main and branch 
offices and the names of branch office managers.\12\
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    \11\ See Securities Exchange Act Release No. 54394 (August 31, 
2006), 71 FR 52827 (September 7, 2006).
    \12\ See Securities Exchange Act Release No. 55505 (March 22, 
2007), 72 FR 14628 (March 28, 2007).
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    The Plan is intended to reduce regulatory duplication for firms 
that are common members of FINRA and NYSE Arca by allocating regulatory 
responsibility with respect to certain applicable laws, rules, and 
regulations that are common among them. Included in the Plan is an 
exhibit that lists every NYSE Arca rule for which FINRA bears 
responsibility under the Plan for overseeing and enforcing with respect 
to NYSE Arca members that are also members of FINRA and the associated 
persons therewith (``Certification'').

III. Proposed Amendment to the Plan

    On December 18, 2020, the parties submitted a proposed amendment to 
the Plan (``Amended Plan''). The primary purpose of the Amended Plan is 
to

[[Page 7591]]

remove Regulation SHO from the Certification. The text of the proposed 
Amended Plan, which replaces and supersedes the current Plan in its 
entirety, is as follows:
* * * * *

AGREEMENT BETWEEN FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC. AND 
NYSE ARCA, INC. PURSUANT TO RULE 17d-2 UNDER THE SECURITIES EXCHANGE 
ACT OF 1934

    This Agreement, by and between Financial Industry Regulatory 
Authority, Inc. (``FINRA'') and the NYSE Arca, Inc. (``NYSE Arca''), is 
made this 17th day of December, 2020 (the ``Agreement''), pursuant to 
Section 17(d) of the Securities Exchange Act of 1934 (the ``Exchange 
Act'' or ``SEA'') and Rule 17d-2 thereunder which permits agreements 
between self-regulatory organizations to allocate regulatory 
responsibility to eliminate regulatory duplication. FINRA and NYSE Arca 
may be referred to individually as a ``party'' and together as the 
``parties.''
    This Agreement amends and restates the agreement entered into 
between the parties on February 9, 2007, entitled ``Agreement Between 
the National Association of Securities Dealers, Inc. and NYSE Arca, 
Inc. Pursuant to SEA Rule 17d-2 Under the Securities Exchange Act of 
1934,'' and any subsequent amendments thereafter.
    Whereas, FINRA and NYSE Arca desire to reduce duplication in the 
examination of their Dual Members (as defined herein) and in the filing 
and processing of certain registration and membership records; and
    Whereas, FINRA and NYSE Arca desire to execute an agreement 
covering such subjects pursuant to the provisions of Rule 17d-2 under 
the Exchange Act and to file such agreement with the Securities and 
Exchange Commission (the ``SEC'' or ``Commission'') for its approval.
    Now, therefore, in consideration of the mutual covenants contained 
hereinafter, FINRA and NYSE Arca hereby agree as follows:
    1. Definitions. Unless otherwise defined in this Agreement or the 
context otherwise requires, the terms used in this Agreement shall have 
the same meaning as they have under the Exchange Act and the rules and 
regulations thereunder. As used in this Agreement, the following terms 
shall have the following meanings:
    (a) ``NYSE Arca Rules'' or ``FINRA Rules'' shall mean: (i) The 
rules of the NYSE Arca, or (ii) the rules of FINRA, respectively, as 
the rules of an exchange or association are defined in Exchange Act 
Section 3(a)(27).
    (b) ``Common Rules'' shall mean the NYSE Arca Rules that are 
substantially similar to the applicable FINRA Rules and certain 
provisions of the Exchange Act and SEA rules set forth on Exhibit 1 in 
that examination for compliance with such rules would not require FINRA 
to develop one or more new examination standards, modules, procedures, 
or criteria in order to analyze the application of such provisions or 
rule, or a Dual Member's activity, conduct, or output in relation to 
such rule; provided, however, Common Rules shall not include the 
application of SEA, NYSE Arca or FINRA rules as they pertain to 
violations of insider trading activities, which is covered by a 
separate 17d-2 Agreement by and among the Cboe BZX Exchange, Inc., Cboe 
BYX Exchange, Inc., NYSE Chicago, Inc., Cboe EDGA Exchange, Inc., Bats 
Cboe EDGX Exchange, Inc., Financial Industry Regulatory Authority, 
Inc., MEMX, LLC, MIAX Pearl, LLC, Nasdaq BX, Inc., Nasdaq PHLX LLC, The 
Nasdaq Stock Market LLC, NYSE National, Inc., New York Stock Exchange 
LLC, NYSE American LLC, NYSE Arca, Inc., Investors Exchange LLC and 
Long-Term Stock Exchange, Inc., approved by the SEC on September 23, 
2020, as may be amended from time to time. Common Rules shall not 
include provisions regarding (i) notice, reporting or any other filings 
made directly to or from NYSE Arca, (ii) incorporation by reference of 
other NYSE Arca Rules that are not Common Rules, (iii) exercise of 
discretion in a manner that differs from FINRA's exercise of 
discretion, including, but not limited to exercise of exemptive 
authority, by NYSE Arca, (iv) prior written approval of NYSE Arca, and 
(v) payment of fees or fines to NYSE Arca.
    (c) ``Dual Members'' shall mean those NYSE Arca members that are 
also members of FINRA and the associated persons therewith.
    (d) ``Effective Date'' shall be the date this Agreement is approved 
by the Commission.
    (e) ``Enforcement Responsibilities'' shall mean the conduct of 
appropriate proceedings, in accordance with the FINRA Code of Procedure 
(the Rule 9000 Series) and other applicable FINRA procedural rules, to 
determine whether violations of Common Rules have occurred, and if such 
violations are deemed to have occurred, the imposition of appropriate 
sanctions as specified under the FINRA Code of Procedure and sanctions 
guidelines.
    (f) ``Regulatory Responsibilities'' shall mean the examination 
responsibilities and Enforcement Responsibilities relating to 
compliance by the Dual Members with the Common Rules and the provisions 
of the Exchange Act and the rules and regulations thereunder, and other 
applicable laws, rules and regulations, each as set forth on Exhibit 1 
attached hereto.
    2. Regulatory and Enforcement Responsibilities. FINRA shall assume 
Regulatory Responsibilities and Enforcement Responsibilities for Dual 
Members. Attached as Exhibit 1 to this Agreement and made part hereof, 
NYSE Arca furnished FINRA with a current list of Common Rules and 
certified to FINRA that such rules are substantially similar to the 
corresponding FINRA Rule (the ``Certification''). FINRA hereby agrees 
that the rules listed in the Certification are Common Rules as defined 
in this Agreement. Each year following the Effective Date of this 
Agreement, or more frequently if required by changes in either the 
rules of NYSE Arca or FINRA, NYSE Arca shall submit an updated list of 
Common Rules to FINRA for review which shall add NYSE Arca Rules not 
included in the current list of Common Rules that qualify as Common 
Rules as defined in this Agreement; delete NYSE Arca Rules included in 
the current list of Common Rules that no longer qualify as Common Rules 
as defined in this Agreement; and confirm that the remaining rules on 
the current list of Common Rules continue to be NYSE Arca Rules that 
qualify as Common Rules as defined in this Agreement. Within 30 days of 
receipt of such updated list, FINRA shall confirm in writing whether 
the rules listed in any updated list are Common Rules as defined in 
this Agreement. Notwithstanding anything herein to the contrary, it is 
explicitly understood that the term ``Regulatory Responsibilities'' 
does not include, and NYSE Arca shall retain full responsibility for 
(unless otherwise addressed by separate agreement or rule) the 
following (collectively, the ``Retained Responsibilities''):
    (a) Surveillance, examination, investigation and enforcement with 
respect to trading activities or practices involving NYSE Arca's own 
marketplace;
    (b) registration pursuant to its applicable rules of associated 
persons (i.e., registration rules that are not Common Rules);
    (c) discharge of its duties and obligations as a Designated 
Examining Authority pursuant to Rule 17d-1 under the Exchange Act, if 
applicable; and

[[Page 7592]]

    (d) any NYSE Arca Rules that are not Common Rules except for NYSE 
Arca Rules for any NYSE Arca affiliate that is a member that operates 
as a facility (as defined in Section 3(a)(2) of the Exchange Act), acts 
as a router for NYSE Arca and is a member of FINRA (``Router Member'') 
as provided in paragraph 6. As of the date of this Agreement, 
Archipelago Securities LLC is the only Router Member.
    3. Dual Members. Prior to the Effective Date, NYSE Arca shall 
furnish FINRA with a current list of Dual Members, which shall be 
updated no less frequently than once each quarter.
    4. No Charge. There shall be no charge to NYSE Arca by FINRA for 
performing the Regulatory Responsibilities and Enforcement 
Responsibilities under this Agreement except as hereinafter provided. 
FINRA shall provide NYSE Arca with ninety (90) days advance written 
notice in the event FINRA decides to impose any charges to NYSE Arca 
for performing the Regulatory Responsibilities under this Agreement. If 
FINRA determines to impose a charge, NYSE Arca shall have the right at 
the time of the imposition of such charge to terminate this Agreement; 
provided, however, that FINRA's Regulatory Responsibilities under this 
Agreement shall continue until the Commission approves the termination 
of this Agreement.
    5. Applicability of Certain Laws, Rules, Regulations or Orders. 
Notwithstanding any provision hereof, this Agreement shall be subject 
to any statute, or any rule or order of the Commission. To the extent 
such statute, rule or order is inconsistent with one or more provisions 
of this Agreement, the statute, rule or order shall supersede the 
provision(s) hereof to the extent necessary to be properly effectuated 
and the provision(s) hereof in that respect shall be null and void.
    6. Notification of Violations.
    (a) In the event that FINRA becomes aware of apparent violations of 
any NYSE Arca Rules, which are not listed as Common Rules, discovered 
pursuant to the performance of the Regulatory Responsibilities assumed 
hereunder, FINRA shall notify NYSE Arca of those apparent violations 
for such response as NYSE Arca deems appropriate. With respect to 
apparent violations of any NYSE Arca Rules by any Router Member, FINRA 
shall not make referrals to NYSE Arca pursuant to this paragraph 6. 
Such apparent violations shall be processed by, and enforcement 
proceedings in respect thereto will be conducted by, FINRA as provided 
in this agreement.
    (b) In the event that NYSE Arca becomes aware of apparent 
violations of any Common Rules, discovered pursuant to the performance 
of the Retained Responsibilities, NYSE Arca shall notify FINRA of those 
apparent violations and such matters shall be handled by FINRA as 
provided in this Agreement.
    (c) Apparent violations of Common Rules shall be processed by, and 
enforcement proceedings in respect thereto shall be conducted by FINRA 
as provided hereinbefore; provided, however, that in the event a Dual 
Member is the subject of an investigation relating to a transaction on 
the NYSE Arca, NYSE Arca may in its discretion assume concurrent 
jurisdiction and responsibility.
    (d) Each party agrees to make available promptly all files, records 
and witnesses necessary to assist the other in its investigation or 
proceedings.
    7. Continued Assistance.
    (a) FINRA shall make available to NYSE Arca all information 
obtained by FINRA in the performance by it of the Regulatory 
Responsibilities hereunder with respect to the Dual Members subject to 
this Agreement. In particular, and not in limitation of the foregoing, 
FINRA shall furnish NYSE Arca any information it obtains about Dual 
Members which reflects adversely on their financial condition. NYSE 
Arca shall make available to FINRA any information coming to its 
attention that reflects adversely on the financial condition of Dual 
Members or indicates possible violations of applicable laws, rules or 
regulations by such firms.
    (b) The parties agree that documents or information shared shall be 
held in confidence, and used only for the purposes of carrying out 
their respective regulatory obligations. Neither party shall assert 
regulatory or other privileges as against the other with respect to 
documents or information that is required to be shared pursuant to this 
Agreement.
    (c) The sharing of documents or information between the parties 
pursuant to this Agreement shall not be deemed a waiver as against 
third parties of regulatory or other privileges relating to the 
discovery of documents or information.
    8. Statutory Disqualifications. When FINRA becomes aware of a 
statutory disqualification as defined in the Exchange Act with respect 
to a Dual Member, FINRA shall determine pursuant to Sections 15A(g) 
and/or Section 6(c) of the Exchange Act the acceptability or continued 
applicability of the person to whom such disqualification applies and 
keep NYSE Arca advised of its actions in this regard for such 
subsequent proceedings as NYSE Arca may initiate.
    9. Customer Complaints. NYSE Arca shall forward to FINRA copies of 
all customer complaints involving Dual Members received by NYSE Arca 
relating to FINRA's Regulatory Responsibilities under this Agreement. 
It shall be FINRA's responsibility to review and take appropriate 
action in respect to such complaints.
    10. Advertising. FINRA shall assume responsibility to review the 
advertising of Dual Members subject to the Agreement, provided that 
such material is filed with FINRA in accordance with FINRA's filing 
procedures and is accompanied with any applicable filing fees set forth 
in FINRA Rules.
    11. No Restrictions on Regulatory Action. Nothing contained in this 
Agreement shall restrict or in any way encumber the right of either 
party to conduct its own independent or concurrent investigation, 
examination or enforcement proceeding of or against Dual Members, as 
either party, in its sole discretion, shall deem appropriate or 
necessary.
    12. Termination. This Agreement may be terminated by NYSE Arca or 
FINRA at any time upon the approval of the Commission after one (1) 
year's written notice to the other party, except as provided in 
paragraph 4.
    13. Arbitration. In the event of a dispute between the parties as 
to the operation of this Agreement, NYSE Arca and FINRA hereby agree 
that any such dispute shall be settled by arbitration in Washington, DC 
in accordance with the rules of the American Arbitration Association 
then in effect, or such other procedures as the parties may mutually 
agree upon. Judgment on the award rendered by the arbitrator(s) may be 
entered in any court having jurisdiction. Each party acknowledges that 
the timely and complete performance of its obligations pursuant to this 
Agreement is critical to the business and operations of the other 
party. In the event of a dispute between the parties, the parties shall 
continue to perform their respective obligations under this Agreement 
in good faith during the resolution of such dispute unless and until 
this Agreement is terminated in accordance with its provisions. Nothing 
in this Section 13 shall interfere with a party's right to terminate 
this Agreement as set forth herein.
    14. Notification of Members. NYSE Arca and FINRA shall notify Dual 
Members of this Agreement after the Effective Date by means of a 
uniform joint notice.

[[Page 7593]]

    15. Amendment. This Agreement may be amended in writing duly 
approved by each party. All such amendments must be filed with and 
approved by the Commission before they become effective.
    16. Limitation of Liability. Neither FINRA nor NYSE Arca nor any of 
their respective directors, governors, officers or employees shall be 
liable to the other party to this Agreement for any liability, loss or 
damage resulting from or claimed to have resulted from any delays, 
inaccuracies, errors or omissions with respect to the provision of 
Regulatory Responsibilities as provided hereby or for the failure to 
provide any such responsibility, except with respect to such liability, 
loss or damages as shall have been suffered by one or the other of 
FINRA or NYSE Arca and caused by the willful misconduct of the other 
party or their respective directors, governors, officers or employees. 
No warranties, express or implied, are made by FINRA or NYSE Arca with 
respect to any of the responsibilities to be performed by each of them 
hereunder.
    17. Relief from Responsibility. Pursuant to Sections 17(d)(1)(A) 
and 19(g) of the Exchange Act and Rule 17d-2 thereunder, FINRA and NYSE 
Arca join in requesting the Commission, upon its approval of this 
Agreement or any part thereof, to relieve NYSE Arca of any and all 
responsibilities with respect to matters allocated to FINRA pursuant to 
this Agreement; provided, however, that this Agreement shall not be 
effective until the Effective Date.
    18. Severability. Any term or provision of this Agreement that is 
invalid or unenforceable in any jurisdiction shall, as to such 
jurisdiction, be ineffective to the extent of such invalidity or 
unenforceability without rendering invalid or unenforceable the 
remaining terms and provisions of this Agreement or affecting the 
validity or enforceability of any of the terms or provisions of this 
Agreement in any other jurisdiction.
    19. Counterparts. This Agreement may be executed in one or more 
counterparts, each of which shall be deemed an original, and such 
counterparts together shall constitute one and the same instrument.
    20. Separate Agreement. This Agreement is wholly separate from (1) 
the multiparty Agreement made pursuant to Rule 17d-2 of the Securities 
Exchange Act of 1934 between the NYSE American LLC, Cboe BZX Exchange, 
Inc., the Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe 
Exchange, Inc., Nasdaq ISE, LLC, Financial Industry Regulatory 
Authority, Inc., NYSE Arca, Inc., The NASDAQ Stock Market LLC, BOX 
Exchange LLC, NASDAQ BX, Inc., NASDAQ PHLX LLC, Miami International 
Securities Exchange, LLC, Nasdaq GEMX, LLC, Nasdaq MRX, LLC, MIAX 
PEARL, LLC, and MIAX Emerald, LLC involving the allocation of 
regulatory responsibilities with respect to common members for 
compliance with common rules relating to the conduct by broker-dealers 
of accounts for listed options or index warrants entered into on 
February 12, 2019, and as may be amended from time to time or (2) the 
multiparty Agreement made pursuant to Rule 17d-2 of the Exchange Act 
among NYSE American LLC, Cboe BZX Exchange, Inc., the Cboe EDGX 
Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc., Nasdaq 
ISE, LLC, Financial Industry Regulatory Authority, Inc., NYSE Arca, 
Inc., The NASDAQ Stock Market LLC, BOX Exchange LLC, NASDAQ BX, Inc., 
NASDAQ PHLX LLC, Miami International Securities Exchange, LLC, Nasdaq 
GEMX, LLC, Nasdaq MRX, LLC, MIAX PEARL, LLC, and MIAX Emerald, LLC 
approved by the Commission on February 11, 2019 involving options-
related market surveillance matters and such agreements as may be 
amended from time to time.
* * * * *

Exhibit 1

NYSE ARCA Certification
NYSE Arca Rules Certification for 17d-2 Agreement With FINRA
    NYSE Arca, Inc. hereby certifies that the requirements contained in 
the rules listed below are identical to, or substantially similar to 
the comparable FINRA Rules and bylaws identified (``Common Rules'').
    # Common Rules shall not include provisions regarding (i) notice, 
reporting or any other filings made directly to or from NYSE Arca, (ii) 
incorporation by reference of other NYSE Arca Rules that are not Common 
Rules (iii) exercise of discretion in a manner than differs from 
FINRA's exercise of discretion including, but not limited to exercise 
of exemptive authority, by NYSE Arca, (iv) prior written approval of 
NYSE Arca, and (v) payment of fees or fines to NYSE Arca.

------------------------------------------------------------------------
        NYSE Arca Rule(s) \1\                    FINRA Rule(s)
------------------------------------------------------------------------
2.16 Responsibilities of Non-Resident  FINRA Rule 1021 Foreign Members.
 Firms .
2.1210 Registration Requirements ...  FINRA Rule 1210 Registration
                                        Requirements.
2.1220 Registration Categories \2\ .  FINRA Rule 1220(a)(1)-(4), (7),
                                        (8), (10), and (b)(1), (2) and
                                        (4), SM. 01-.06 Registration
                                        Categories.
2.1230 Associated Persons Exempt from  FINRA Rule 1230(a) and SM. 01,
 Registration.                          Associated Persons Exempt from
                                        Registration.
2.28 Books and Records .............  FINRA Rule 4511 General
                                        Requirements.*
11.1(b) Adherence to Law and Good      FINRA Rule 2010 Standards of
 Business Practice.                     Commercial Honor and Principals
                                        of Trade.*
11.2 Prohibited Acts ...............  FINRA Rule 2010 Standards of
                                        Commercial Honor and Principals
                                        of Trade,* FINRA Rule 1122
                                        Filing of Misleading Information
                                        as to Membership or
                                        Registration, and FINRA By-Laws
                                        Article XIII, Section 1.
11.10 Excessive Trading..............  FINRA Rule 6140(c) Other Trading
                                        Practices.
11.13 Disciplinary Action By Other     FINRA Rule 4530(a)(1)(A),
 Organizations .                       (a)(1)(C), (a)(1)(D) & (2)
                                        Reporting Requirements and FINRA
                                        By-Laws Article V, Section 2.
11.18 Supervision  \3\..............  FINRA Rule 3110(a), (b)(1) and
                                        (f) Supervision,* and FINRA Rule
                                        1220(a)(1)-(4), (7), (8), (10)
                                        Registration Categories.
11.19 Anti-Money Laundering            FINRA Rule 3310 Anti-Money
 Compliance Program .                  Laundering Compliance Program.
11.20 Miscellaneous Provisions(a)(1)   FINRA Rule 6140 Other Trading
 and (3).                               Practices.
------------------------------------------------------------------------


 
    NYSE Arca Equities Rule(s) \4\               FINRA Rule(s)
------------------------------------------------------------------------
2.24 Registration-Employees of ETP     FINRA Rule 1210 Registration
 Holders and Commentary .02  \5\.      Requirements, FINRA Rule 1010(a)
                                        and (c) Electronic Filing
                                        Requirements for Uniform Forms,
                                        and FINRA By-Laws Article V,
                                        Sec. 2 Application for
                                        Registration.

[[Page 7594]]

 
2.24(b), (c), and Commentary .03 and   FINRA Rule 1210 and SM .03, .07
 .05 Registration-Employees of ETP      and .08 Registration
 Holders .                             Requirements, and FINRA Rule
                                        1240 Continuing Education
                                        Requirements, and FINRA Rule
                                        1230(a) Associated Persons
                                        Exempt from Registration.
2.24(d) and Commentary .04 Continuing  FINRA Rule 1240 Continuing
 Education and 9.27-E(c) Continuing     Education Requirements.
 Education Requirements.
2.24(i) Registration-Employees of ETP  FINRA Rule 1010(e) Electronic
 Holders.                               Filing Requirements for Uniform
                                        Forms and FINRA By-Laws Article
                                        V, Section 3 Notification by
                                        Member to the Corporation and
                                        Associated Person of
                                        Termination; Amendments to
                                        Notification.
2.24(j) Registration-Employees of ETP  FINRA By-Laws Article V, Section
 Holders.                               2 Application for Registration.
5.2-E(h) Unit Investment Trusts        FINRA Rule 3260(c) Discretionary
 (``UITs'') Commentary .03 .           Accounts.
7.3-E(b) and (c) Commissions.........  FINRA Rule 2232 Customer
                                        Confirmations and SEA 10b-10.
9.1-E(a) Register with the Exchange   FINRA Rule 3110(a)(3) Supervisory
                                        System, SM .01 Registration of
                                        Main Office, and SM .02
                                        Designation of Additional OSJs,
                                        and FINRA By-Laws Article IV,
                                        Sec. 1(c) Application for
                                        Membership.
9.1-E(c) Office Supervision ........  FINRA Rule 3110(a) Supervision.*
9.1-E(d) ETP Holder shall at all       FINRA Rule 3110(a) Supervison.*
 times .
9.1-E(e)(2) and (3) Guarantees.......  FINRA Rule 2150(b) Improper use
                                        of Customers' Securities or
                                        Funds; Prohibitions Against
                                        Guarantees and Sharing in
                                        Accounts.
9.2-E(a) Diligence As To Accounts....  FINRA Rule 2090 Know Your
                                        Customer.\6\
9.2-E(a)(2) and (3) Diligence As To    FINRA Rule 2111 Suitability.
 Accounts.
9.2-E(b)(1) and (4) Account            FINRA Rule 3110 Supervision and
 Supervision.                           FINRA Rule 4511.*
9.2-E(c) Customer Records............  FINRA Rule 4512 Customer Account
                                        Information.* \7\
9.3-E(a) Employee Accounts...........  FINRA Rule 3210 Accounts at Other
                                        Broker-Dealers and Financial
                                        Institutions.\8\
9.3-E(b) ETP Holder Accounts.........  FINRA Rule 3210 Accounts at Other
                                        Broker-Dealers and Financial
                                        Institutions.
9.4-E Proxies Voting.................  FINRA Rule 2251(b) Processing and
                                        Forwarding of Proxies and Other
                                        Issuer-Related Materials.
9.5-E Solicitation Expense...........  FINRA Rule 2251(c) Processing and
                                        Forwarding of Proxies and Other
                                        Issuer-Related Materials.
9.6-E(a) Discretion as to Customers'   FINRA Rule 3260 Discretionary
 Accounts and 9.6-E(b) Records of       Accounts and FINRA Rule
 Discretionary Accounts.                4512(a)(3) Customer Account
                                        Information.*
9.6-E(c) Marking Discretionary Orders  FINRA Rule 3260 Discretionary
                                        Accounts.
9.7-E(b) Use of Customer Securities..  FINRA Rule 2150(a) Improper use
                                        of Customers' Securities or
                                        Funds; Prohibition Against
                                        Guarantees and Sharing in
                                        Accounts, and FINRA Rule 2010
                                        Standards of Commercial Honor
                                        and Principles of Trade.
9.7-E(c) Customer Protection--         FINRA 4330(b)(1)(A) Customer
 Reserves and Custody of Securities.    Protection--Permissible Use of
                                        Customers' Securities and SM .01
                                        Definitions.
9.7-E(d) Agreements for Use of         FINRA 4330(a)Customer Protection--
 Customer Securities.                   Permissible Use of Customers'
                                        Securities.
9.11-E Confirmations.................  Temporary Dual FINRA NYSE Member
                                        Rule 409T(b) Statements of
                                        Accounts to Customer.\9\
9.12-E COD Orders--Partial Delivery..  FINRA Rule 11860 COD Orders.
9.14-E Account Designation...........  FINRA Rule 4515 Approval and
                                        Documentation of Changes in
                                        Account Name or Designation.
9.15-E Statements of Account to        FINRA Rule 2231 Customer Account
 Customers.                             Statements.
9.16-O Statement or Notice on          FINRA Rule 2360(b)(15) Options,
 Interest.                              FINRA Rule 2231(a) Customer
                                        Account Statements.
9.18-E(h) Doing a Public Business in   FINRA Rule 2360(b)(13) Options.
 Options.
9.19-E Transfer of Accounts..........  FINRA Rule 11870 Customer Account
                                        Transfer Contracts.
9.20-E(b) Telemarketing..............  FINRA Rule 3230 Telemarketing.
9.27-E(a) and (b) Registration of      FINRA Rule 1220 Registration
 Representatives .                     Categories, FINRA Rule 1240
                                        Continuing Education
                                        Requirements, FINRA Rule 1010(d)
                                        Electronic Filing Requirements
                                        for Uniform Forms, and FINRA By-
                                        Laws Article V Registered
                                        Representatives and Associated
                                        Persons.
9.29-E Borrowing From or Lending to    FINRA Rule 3240 Borrowing From or
 Customers.                             Lending to Customers.
11.22 Trading Ahead of Research        FINRA Rule 5280 Trading Ahead of
 Reports.                               Research Reports.
9.2010-E Standards of Commercial       FINRA Rule 2010 Standards of
 Honor and Principles of Trade.         Commercial Honor and Principles
                                        of Trade.*
9.2020-E Use of Manipulative,          FINRA Rule 2020 Use of
 Deceptive or Other Fraudulent          Manipulative, Deceptive or Other
 Devices.                               Fraudulent Devices.*
9.2150-E Improper Use of Customers'    FINRA Rule 2150 Improper Use of
 Securities or Funds' Prohibition       Customers' Securities or Funds;
 Against Guarantees and Sharing in      Prohibition Against Guarantees
 Accounts.                              and Sharing in Accounts.
9.2262-E Disclosure of Control         FINRA Rule 2262 Disclosure of
 Relationship with Issuer.              Control Relationship with
                                        Issuer.
9.2269-E Disclosure of Participation   FINRA Rule 2269 Disclosure of
 or Interest in Primary or Secondary    Participation or Interest in
 Distribution.                          Primary or Secondary
                                        Distribution.
9.3220-E Influencing or Rewarding      FINRA Rule 3220 Influencing or
 Employees of Others.                   Rewarding Employees of Others.
9.3270-E Outside Business Activities   FINRA Rule 3270 Outside Business
 of Registered Persons.                 Activities of Registered
                                        Persons.
9.5320-E Prohibition Against trading   FINRA Rule 5320 Prohibition
 Ahead of Customer Orders.              Against Trading Ahead of
                                        Customer Orders.
9.5190-E Notification Requirements     FINRA Rule 5190 Notification
 for Offering Participants .           Requirements for Offering
                                        Participants.\10\
9.5210-E Publication of Transactions   FINRA Rule 5210 Publication of
 and Quotations.                        Transactions and Quotations.
6.7410-E Definitions.................  FINRA Rule 7410 Definitions.
6.7420-E Applicability...............  FINRA Rule 7420 Applicability.
6.7430-E Synchronization of ETP        FINRA Rule 4590 Synchronization
 Holder Business Clock .               of Member Business Clocks.

[[Page 7595]]

 
6.7440-E Recording of Order            FINRA Rule 7440 Recording of
 Information.                           Order Information.
6.7450-E Order Data Transmission       FINRA Rule 7450 Order Data
 Requirements.                          Transmission Requirements.
6.7460-E Violation of Order Audit      FINRA Rule 7460 Violation of
 Trail System Rules.                    Order Audit Trail System Rules.
6.7470-E Exemption to the Order        FINRA Rule 7470 Exemption to the
 Recording and Data Transmission        Order Recording and Data
 Requirements .                        Transmission Requirements.
------------------------------------------------------------------------


 
    NYSE Arca Options Rule(s) \11\               FINRA Rule(s)
------------------------------------------------------------------------
2.23(a) Registration--OTPs .........  FINRA Rule 1210 Registration
                                        Requirements, FINRA Rule 1010(a)
                                        and (c) Electronic Filing
                                        Requirements for Uniform Forms,
                                        and FINRA By-Laws Article V,
                                        Sec. 2 Application for
                                        Registration.
2.23(b)(1) and (3) Registration ....  FINRA Rule 1210 and SM .03 and
                                        .07 Registration Requirements,
                                        and FINRA Rule 1220(a)(2), (7)
                                        and (b)(2) Registration
                                        Categories.
2.23(c) and .04 Registration.........  FINRA Rule 1210 SM .03 and .08
                                        Registration Requirements.
2.23(d) and .03 Registration and 9.27- FINRA Rule 1240 Continuing
 O(c) Continuing Education              Education Requirements.
 Requirements.
2.23(j) Registration.................  FINRA By-Laws Article V, Section
                                        2 Application for Registration.
9.1-O(c) Office Supervision ........  FINRA Rule 3110(a) Supervision.*
9.1-O(d) OTP Holders ...............  FINRA Rule 3110(a) Supervision.*
9.2-O(c) Customer Records............  FINRA Rule 4512 Customer Account
                                        Information.\12\
9.3-O(a) Employee Accounts...........  FINRA Rule 3210 Accounts at Other
                                        Broker-Dealers and Financial
                                        Institutions.\10\
9.3-O(b) OTP Firms, OTP Holder         FINRA Rule 3210 Accounts at Other
 Accounts.                              Broker-Dealers and Financial
                                        Institutions.
9.4-O Proxies Voting.................  FINRA Rule 2251(b) Forward of
                                        Proxies and Other Issuer-Related
                                        Materials.
9.5-O Solicitation Expense...........  FINRA Rule 2251(c)(1)(b) Forward
                                        of Proxies and Other Issuer-
                                        Related Materials.
9.6-O(a) Discretion as to Customers'   FINRA Rule 3260 Discretionary
 Accounts and 9.6-O(b) Records of       Accounts and FINRA Rule
 Discretionary Accounts.                4512(a)(3) Customer Account
                                        Information.*
9.6-O(c) Marking Discretionary Orders  FINRA Rule 3260 Discretionary
                                        Accounts.
9.7-O(b) Use Customer Securities.....  FINRA Rule 2150(a) Improper Use
                                        of Customers' Securities or
                                        Funds Prohibition and FINRA Rule
                                        2010 Standards of Commercial
                                        Honor and Principles of Trade.
9.7-O(c) Customer Protection--         FINRA Rule 4330(b)(1)(A) Customer
 Reserves and Customer's Securities.    Protection--Permissible Use of
                                        Customers' Securities and SM .01
                                        Definitions.
9.7-O(d) Agreements for Use of         FINRA Rule 4330(a) Customer
 Customer Securities.                   Protection--Permissible Use of
                                        Customers' Securities.
9.11-O Confirmations.................  Temporary Dual FINRA NYSE Member
                                        Rule 409T(b) Statements of
                                        Accounts to Customers.\11\
9.12-O COD Orders--Partial Delivery..  FINRA Rule 11860 COD Orders.
9.14-O Account Designation...........  FINRA Rule 4515 Approval and
                                        Documentation of Changes in
                                        Account Name or Designation.
9.15-O Statements of Accounts to       FINRA Rule 2231 Customer Account
 Customers .                           Statements.
9.16-O Statement or Notice on          FINRA Rule 2360(b)(15) Options,
 Interest.                              FINRA Rule 2231(a) Customer
                                        Account Statements.
9.18-O(h) Doing a Public Business in   FINRA Rule 2360(b)(13) Options.
 Options.
9.19-O Transfer of Accounts..........  FINRA Rule 11870 Customer Account
                                        Transfer Contracts.
9.20-O(b) Telemarketing..............  FINRA Rule 3230 Telemarketing.
9.29-O Borrowing From or Lending to    FINRA Rule 3240 Borrowing From or
 Customers.                             Lending to Customers.
------------------------------------------------------------------------
\1\ The rules in this section apply to ETP Holders, OTP Holders and OTP
  Firms, where applicable.
\2\ FINRA shall not have Regulatory Responsibilities for Rule
  2.1220(a)(4)(B) to the extent FINRA exempts a member from the
  requirement to have a Financial and Operations Principal.
\3\ FINRA shall not have Regulatory Responsibilities regarding NYSE Arca
  Rule 11.18(d).
\4\ The rules in this section apply specifically to ETP Holders.
\5\ This Certification only applies to the first two sentences of Rule
  2.24, which are not enumerated, and Commentary .02. Certifications to
  other parts of Rule 2.24 appear elsewhere in this Exhibit.
\6\ FINRA's requirements do not include an exercise of due diligence as
  to every order.
\7\ FINRA shall not have Regulatory Responsibilities for NYSE Arca Rule
  9.2-E(c) Commentary .01-.03 as it relates to institutional accounts
  and responsibility for such rule shall remain with NYSE Arca.
\8\ FINRA shall not have any Regulatory Responsibilities with respect to
  employees of NYSE Arca.
\9\ FINRA shall only have Regulatory Responsibilities to the extent the
  Common Member is subject to FINRA's Temporary Dual FINRA-NYSE Member
  Rule.
\10\ FINRA shall not have Regulatory Responsibilities for NYSE Arca Rule
  5190-E(e).
\11\ The rules in this section apply specifically to OTP Holders.
\12\ FINRA shall not have Regulatory Responsibilities for NYSE Arca Rule
  9.2-O(c) Commentary .01-.03 as it relates to institutional accounts
  and responsibility for such rule shall remain with NYSE Arca.
* FINRA shall not have any Regulatory Responsibilities for these rules
  as they pertain to violations insider trading activities, which is
  covered by a separate 17d-2 Agreement by and among Cboe BZX Exchange,
  Inc., Cboe BYX Exchange, Inc., NYSE Chicago, Inc., Cboe EDGA Exchange,
  Inc., Cboe EDGX Exchange, Inc., Financial Industry Regulatory
  Authority, Inc., MEMX LLC, MIAX Pearl, LLC, Nasdaq BX, Inc., Nasdaq
  PHLX LLC, The Nasdaq Stock Market LLC, NYSE National, Inc., New York
  Stock Exchange LLC, NYSE American LLC, NYSE Arca Inc., Investors'
  Exchange LLC and Long-Term Stock Exchange, Inc. effective September
  23, 2020, as may be amended from time to time.


[[Page 7596]]

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing. Comments may be submitted by any of 
the following methods:

Electronic Comments

    <bullet> Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#c3b1b6afa6eea0acaeaea6adb7b083b0a6a0eda4acb5"><span class="__cf_email__" data-cfemail="fe8c8b929bd39d9193939b908a8dbe8d9b9dd0999188">[email protected]</span></a>. Please include 
File Number 4-523 on the subject line.

Paper Comments

    <bullet> 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 4-523. 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 plan that are filed with the 
Commission, and all written communications relating to the proposed 
plan 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 plan also will be available for inspection and 
copying at the principal offices of FINRA and NYSE Arca. 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 4-523 and should be submitted on or before 
February 19, 2021.

V. Discussion

    The Commission finds that the proposed Amended Plan is consistent 
with the factors set forth in Section 17(d) of the Act \13\ and Rule 
17d-2(c) thereunder \14\ in that the proposed Amended Plan is necessary 
or appropriate in the public interest and for the protection of 
investors, fosters cooperation and coordination among SROs, and removes 
impediments to and fosters the development of the national market 
system. In particular, the Commission believes that the proposed 
Amended Plan should reduce unnecessary regulatory duplication by 
allocating to FINRA certain examination and enforcement 
responsibilities for Common Members that would otherwise be performed 
by both FINRA and NYSE Arca. Accordingly, the proposed Amended Plan 
promotes efficiency by reducing costs to Common Members. Furthermore, 
because NYSE Arca and FINRA will coordinate their regulatory functions 
in accordance with the Amended Plan, the Amended Plan should promote 
investor protection.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78q(d).
    \14\ 17 CFR 240.17d-2(c).
---------------------------------------------------------------------------

    The Commission notes that, under the Amended Plan, NYSE Arca and 
FINRA have allocated regulatory responsibility for those NYSE Arca 
rules, set forth in the Certification, that are substantially similar 
to the applicable FINRA rules in that examination for compliance with 
such provisions and rules would not require FINRA to develop one or 
more new examination standards, modules, procedures, or criteria in 
order to analyze the application of the rule, or a Common Member's 
activity, conduct, or output in relation to such rule. In addition, 
under the Amended Plan, FINRA would assume regulatory responsibility 
for certain provisions of the federal securities laws and the rules and 
regulations thereunder that are set forth in the Certification. The 
Common Rules covered by the Amended Plan are specifically listed in the 
Certification, as may be amended by the Parties from time to time.
    According to the Amended Plan, NYSE Arca will review the 
Certification at least annually, or more frequently if required by 
changes in either the rules of NYSE Arca or FINRA, and, if necessary, 
submit to FINRA an updated list of Common Rules to add NYSE Arca rules 
not included on the then-current list of Common Rules that are 
substantially similar to FINRA rules; delete NYSE Arca rules included 
in the then-current list of Common Rules that no longer qualify as 
common rules; and confirm that the remaining rules on the list of 
Common Rules continue to be NYSE Arca rules that qualify as common 
rules.\15\ FINRA will then confirm in writing whether the rules listed 
in any updated list are Common Rules as defined in the Amended Plan. 
Under the Amended Plan, NYSE Arca also will provide FINRA with a 
current list of Common Members and will update the list no less 
frequently than once each quarter.\16\ The Commission believes that 
these provisions are designed to provide for continuing communication 
between the Parties to ensure the continued accuracy of the scope of 
the proposed allocation of regulatory responsibility.
---------------------------------------------------------------------------

    \15\ See paragraph 2 of the Amended Plan.
    \16\ See paragraph 3 of the Amended Plan.
---------------------------------------------------------------------------

    The Commission is hereby declaring effective an Amended Plan that, 
among other things, allocates regulatory responsibility to FINRA for 
the oversight and enforcement of all NYSE Arca rules that are 
substantially similar to the rules of FINRA for Common Members of NYSE 
Arca and FINRA. Therefore, modifications to the Certification need not 
be filed with the Commission as an amendment to the Amended Plan, 
provided that the Parties are only adding to, deleting from, or 
confirming changes to NYSE Arca rules in the Certification in 
conformance with the definition of Common Rules provided in the Amended 
Plan. However, should the Parties decide to add a NYSE Arca rule to the 
Certification that is not substantially similar to a FINRA rule; delete 
a NYSE Arca rule from the Certification that is substantially similar 
to a FINRA rule; or leave on the Certification a NYSE Arca rule that is 
no longer substantially similar to a FINRA rule, then such a change 
would constitute an amendment to the Amended Plan, which must be filed 
with the Commission pursuant to Rule 17d-2 under the Act.\17\
---------------------------------------------------------------------------

    \17\ The addition to or deletion from the Certification of any 
federal securities laws, rules, and regulations for which FINRA 
would bear responsibility under the Amended Plan for examining, and 
enforcing compliance by, Common Members, also would constitute an 
amendment to the Amended Plan.
---------------------------------------------------------------------------

    Under paragraph (c) of Rule 17d-2, the Commission may, after 
appropriate notice and comment, declare a plan, or any part of a plan, 
effective. In this instance, the Commission believes that appropriate 
notice and comment can take place after the proposed amendment is 
effective. The primary purpose of the amendment is to remove Regulation 
SHO from the Certification. The Commission notes that the prior version 
of this plan immediately prior to this proposed amendment was published 
for comment and the Commission did not receive any comments 
thereon.\18\ Furthermore, the Commission does not believe that the 
amendment to the plan raises any new

[[Page 7597]]

regulatory issues that the Commission has not previously considered.
---------------------------------------------------------------------------

    \18\ See supra note 12 (citing to Securities Exchange Act 
Release No. 55505).
---------------------------------------------------------------------------

VI. Conclusion

    This order gives effect to the Amended Plan filed with the 
Commission in File No. 4-523. The Parties shall notify all members 
affected by the Amended Plan of their rights and obligations under the 
Amended Plan.
    It is therefore ordered, pursuant to Section 17(d) of the Act, that 
the Amended Plan in File No. 4-523, between the FINRA and NYSE Arca, 
filed pursuant to Rule 17d-2 under the Act, hereby is approved and 
declared effective.
    It is further ordered that NYSE Arca is relieved of those 
responsibilities allocated to FINRA under the Amended Plan in File No. 
4-523.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(34).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-01941 Filed 1-28-21; 8:45 am]
BILLING CODE 8011-01-P


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