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[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Notices]
[Pages 100581-100583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29144]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101831; File No. SR-NYSEARCA-2024-108]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 2.4

December 6, 2024
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on December 3, 2024, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 2.4 to add clarity to the 
process for a broker-dealer to become or remain an ETP Holder, OTP 
Holder or OTP Firm or remain an ETP Holder, OTP Holder or OTP Firm on 
the Exchange notwithstanding the existence of a statutory 
disqualification. The proposed rule change is available on the 
Exchange's website at www.nyse.com, at the principal office of the 
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Rule 2.4 to add clarity to the 
process for a broker-dealer to become or remain an ETP Holder, OTP 
Holder or OTP Firm on the Exchange notwithstanding the existence of a 
statutory disqualification.
Background and Proposed Rule Filing
    Section 3(a)(39) of the Act defines the term ``statutory 
disqualification'' and the circumstances that can cause a person 
(either a Member, or a person associated with a Member) to be subject 
to a statutory disqualification.\4\ Absent relief, a statutory 
disqualification would preclude a broker-dealer or person associated 
with a broker-dealer from certain activities, including membership in a 
self-regulatory organization (``SRO'').
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    \4\ 15 U.S.C. 78c(a)(39).
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    There is, however, a well-established process through which a 
broker-dealer (or a person associated with a broker-dealer) may 
continue to operate in the securities industry (and either become a 
member of, or continue as a member of, one or more SROs) despite being 
subject to a statutory disqualification.\5\ In particular, SEC Rule 
19h-1 \6\ describes several ways an SRO may seek relief for a member 
(or prospective member) that is subject to a statutory 
disqualification, including whether an SRO must file a notice with the 
Commission in order to allow the disqualified firm to become or 
continue as a member with the SRO (a ``19h-1 Notice''). A 19h-1 Notice 
does not, for instance, need to be filed by an SRO if the firm subject 
to a statutory disqualification is a member of at least one other SRO, 
and that SRO intends to file a 19h-1 Notice for the firm.\7\
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    \5\ See FINRA Regulatory Notice 09-19 (``Amendments to FINRA 
Rule 9520 Series to Establish Procedures Applicable to Firms and 
Associated Persons Subject to Certain Statutory 
Disqualifications'').
    \6\ 17 CFR 240.19h-1.
    \7\ Id. at (a)(3).
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    Rule 2.4 (Application Procedures) governs application procedures 
for persons applying to become an ETP Holder, every individual or 
organization applying to become the holder of an OTP and every 
individual applying to become a Nominee of an OTP Firm, and provides in 
subsection (e) that the Exchange shall approve an application if it 
finds that the applicant meets all of the qualifications for holding an 
ETP or OTP, as applicable, and shall reject an application if it does 
not make such a finding or if it finds that, if the application were 
approved, the ETP Holder, OTP Holder or OTP Firm, as applicable, would 
be subject to suspension or expulsion under the provisions of the 
Bylaws, Rules or procedures of the Exchange or the rules, regulations 
and procedures promulgated under the Securities Exchange Act of 1934, 
as amended.\8\
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    \8\ See Rule 2.4(e).
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    Recently, a non-member broker-dealer firm subject to a statutory 
disqualification that is currently under review by the Financial 
Industry Regulatory Authority, Inc. (``FINRA'') applied for Exchange 
membership.\9\
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    \9\ The processing of new membership applications at the 
Exchange includes statutory disqualification disclosures and 
background investigations of prospective ETP Holders and persons 
associated with an ETP Holder. Review, assessment, and processing of 
these membership applications has been conducted on behalf of the 
Exchange by FINRA pursuant to a regulatory services agreement.
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    In reviewing this application, the Exchange determined that this 
situation is not explicitly addressed in its rules as it is in the 
rules of other exchanges.\10\ Specifically, BOX, Cboe BZX, Cboe BYX, 
Cboe EDGX, and Cboe EDGA each amended their respective rules in 2016 to 
provide more clarity as to the authority of each exchange to determine 
whether to admit a prospective member that is subject to a statutory 
disqualification.\11\ The 2016 rule change

[[Page 100582]]

filings of these exchanges also amended several other aspects of their 
application procedures, but the Exchange only seeks to harmonize its 
rules insofar as they apply to ETP Holders, OTP Holders or OTP Firms 
and prospective ETP Holders, OTP Holders or OTP Firms (and associated 
persons of ETP Holders, OTP Holders or OTP Firms) that are subject to a 
statutory disqualification in order to address the membership 
application described herein.\12\
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    \10\ See Cboe EDGX Exchange, Inc. (``Cboe EDGX'') Rule 2.5(a) & 
Interpretation and Policies .04; Cboe BZX Exchange, Inc. (``Cboe 
BZX'') Rule 2.5(a) & Interpretation and Policies .04; Cboe BYX 
Exchange, Inc. (``Cboe BYX'') Rule 2.5(a) & Interpretation and 
Policies .04; Cboe EDGA Exchange, Inc. (``Cboe EDGA'') Rule 2.5(a) & 
Interpretation and Policies .04; and BOX Options Exchange LLC 
(``BOX'') Rule 2040(a) & IM-2040-08.
    \11\ See Securities Exchange Act Release No. 78449 (August 1, 
2016), 81 FR 51947 (August 5, 2016) (SR-BOX-2016-26); Securities 
Exchange Act Release No. 79229 (November 3, 2016), 81 FR 78875 
(November 9, 2016) (SR-BatsBZX-2016-67); Securities Exchange Act 
Release No. 79233 (November 3, 2016), 81 FR 78869 (November 9, 2016) 
(SR-BatsBYX-2016-28); Securities Exchange Act Release No. 79234 
(November 3, 2016), 81 FR 78867 (November 9, 2016) (SR-BatsEDGA-
2016-23); Securities Exchange Act Release No. 79236 (November 3, 
2016), 81 FR 78878 (November 9, 2016) (SR-BatsEDGX2016-59).
    \12\ The 2016 rule filings also added some other conditions for 
eligibility for exchange membership such as adding a restriction 
that members must meet any condition the exchange placed on such 
member, which the Exchange believes are adequately addressed in 
other Exchange rules. See, e.g., Rule 2.2 (Qualifications and 
Application of Individual OTP Applicants); Rule 2.3 (Qualifications 
of Firm Applicants); Rule 2.5 (Denial of or Condition to Trading 
Permits). Moreover, the Rule 10.9520 Series sets forth procedures 
for a covered person (defined in Rule 10.9120(g) as an Associated 
Person of an ETP Holder, OTP Holder or OTP Firm, an Approved Person, 
and any other person subject to the jurisdiction of the Exchange) to 
become or remain associated with a Participant or Participant Firm 
notwithstanding the existence of a statutory disqualification as 
defined in Section 3(a)(39) of the Act, and for a current ETP 
Holder, OTP Holder, OTP Firm or covered person to obtain relief from 
the eligibility or qualification requirements of the Exchange's 
Rules, referred to in the Rule as ``eligibility proceedings.''
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    The Exchange accordingly proposes to align its rule with these 
other exchanges specifically with respect to the process of assessing 
an applicant for membership that is subject to a statutory 
disqualification.\13\ As discussed below, the Exchange is making the 
proposed rule changes and seeks waiver of the 30-day operative delay in 
order to address an unusual and time sensitive situation in which a 
firm subject to a statutory disqualification seeks to become an 
Exchange permit holder during the pendency of the process by which the 
firm is seeking relief from the statutory disqualification.
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    \13\ The proposed changes mirror the language in the following 
rules: BOX Rule 2040(a) and IM-2040-08; Cboe BZX Rule 2.5(a) and 
Interpretation and Policies .04; Cboe BYX Rule 2.5(a) and 
Interpretation and Policies .04; Cboe EDGA Rule 2.5(a) and 
Interpretation and Policies .04; and Cboe EDGX Rule 2.5(a) and 
Interpretation and Policies .04.
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    To effectuate these changes, the Exchange proposes to add 
Commentary .01 to Rule 2.4 to provide that the Exchange could approve 
an applicant for membership (or association with a member) that is 
subject to a statutory disqualification when a proceeding is pending 
before another SRO to determine whether to permit an ETP Holder, OTP 
Holder, OTP Firm or covered person \14\ to become or continue 
membership or association notwithstanding a statutory disqualification. 
This provision, which is consistent with SEC Rule 19h-1(a)(3), would 
provide as follows (additions italicized):
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    \14\ Covered person is defined in Rule 10.9120(g) of the 
Exchange's disciplinary rules to mean an Associated Person of an ETP 
Holder, OTP Holder or OTP Firm, an Approved Person, and any other 
person subject to the jurisdiction of the Exchange. The Rule 10.9500 
Series sets forth procedures for a covered person to become or 
remain associated with an ETP Holder, OTP Holder or OTP Firm 
notwithstanding the existence of a statutory disqualification as 
defined in Section 3(a)(39) of the Act and for a current ETP Holder, 
OTP Holder, OTP Firm or covered person to obtain relief from the 
eligibility or qualification requirements of the Exchange's Rules.
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    .01 Statutory Disqualification Proceedings Pending Before Another 
SRO. The Exchange may waive the provisions of Rule 2.4(e) when a 
proceeding is pending before another self-regulatory organization to 
determine whether to permit a member or associated person of a member 
to become or continue membership or association notwithstanding a 
statutory disqualification. In the event the Exchange determines to 
waive the provisions of Rule 2.4(e) with respect to an existing or 
prospective ETP Holder, OTP Holder, OTP Firm or covered person, the 
Exchange shall determine whether it will concur in any Exchange Act 
Rule 19h-1 filing made by another self-regulatory organization with 
respect to the permit holder or covered person.
    This Commentary is substantively identical to IM-2040-8 to BOX Rule 
2040 and Interpretation and Policies .04 to Cboe BZX, BYX, EDGX, and 
EDGA Rules 2.5, except for language clarifying that the new 
supplementary material would apply to both prospective and existing 
Exchange members and covered persons.
    The Exchange also proposes a conforming amendment to Rule 2.4(e) to 
add a clause providing that except as otherwise permitted by the 
Exchange, no person may become an ETP Holder, OTP Holder or OTP Firm or 
continue as an ETP Holder, OTP Holder or OTP Firm in any capacity on 
the Exchange where such person is subject to a statutory 
disqualification. The proposed language is based on the rules of the 
Exchange's affiliates the New York Stock Exchange LLC (``NYSE'') and 
NYSE American LLC (``NYSE American''), specifically NYSE Rule 346 
(Statutory Disqualification--Association of Member Organizations, and 
Persons Associated With Member Organizations) and NYSE American Rule 
342 (Association of Members, Member Organizations, and Persons 
Associated With Member Organizations), and is also substantively 
identical to BOX Rule 2040(a)(3) and Cboe BZX, BYX, EDGX, and EDGA 
Rules 2.5(a)(3).
    The Exchange believes that the proposed rule change would 
appropriately align its rules with the Commission's rules regarding 
statutory disqualifications and harmonize the Exchange's process with 
several other SROs. The Exchange notes that in assessing the statutory 
disqualification of an ETP Holder, OTP Holder or OTP Firm or 
prospective ETP Holder, OTP Holder or OTP Firm, it must act consistent 
with the protection of investors and in the public interest and cannot 
unfairly discriminate against ETP Holders, OTP Holders or OTP Firms or 
prospective ETP Holders, OTP Holders or OTP Firms.\15\ Moreover, as 
noted above, an ETP Holder, OTP Holder or OTP Firm can seek relief from 
the Exchange's eligibility or qualification requirements pursuant to 
the Rule 10.9520 Series.\16\ In addition, any prospective ETP Holder, 
OTP Holder or OTP Firm that has been denied membership in the Exchange 
or barred from becoming associated with a ETP Holder, OTP Holder or OTP 
Firm is entitled to certain due process pursuant to Rule 10.14 
(Hearings and Review of Decisions by the Exchange), which includes, but 
is not limited to, potential review by the Commission.
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    \15\ 15 U.S.C. 78f(b)(5).
    \16\ See note 12, supra.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the Act 
\17\ in general, and furthers the objectives of Section 6(b)(5),\18\ in 
particular, because it is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in facilitating transactions in securities, to remove 
impediments to, and perfect the mechanism of, a free and open market 
and a national market system and, in general, to protect investors and 
the public interest.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change would better 
align the Exchange's rules with the Commission's rules regarding 
statutory disqualifications and enable a consistent process across the 
Exchange and several other SROs to make appropriate filings with 
respect to persons subject to a statutory disqualification, thereby 
protecting investors and the public

[[Page 100583]]

interest by providing more clarity and consistency with respect to the 
process of seeking relief from a statutory disqualification and in 
general enabling the Exchange to more efficiently administer membership 
applications involving statutory disqualifications. The Exchange 
further believes that the proposed change 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, and add clarity, transparency and consistency to the 
Exchange's disciplinary rules. The Exchange believes that market 
participants would benefit from the increased clarity, thereby reducing 
potential confusion. In addition, the proposed changes would align Rule 
2.4 with the equivalent rules of BOX, Cboe BZX, Cboe BYX, Cboe EDGA, 
Cboe EDGX, as well as the rules of the Exchange's affiliates.

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 Act. The proposed rule change is 
not intended to address competitive issues but rather is concerned 
solely with aligning the Exchange's rules with those of other exchanges 
and with the Commission's approach to handling firms that are subject 
to statutory disqualification.

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 \19\ and Rule 19b-
4(f)(6) thereunder.\20\
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 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. 
NYSE Arca has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \21\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\22\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. NYSE Arca has asked 
the Commission to waive the 30-day operative delay so that the proposed 
rule change may become operative upon filing. NYSE Arca states that 
waiving the 30-day delay in this manner would allow the Exchange to 
address an unusual and time sensitive situation in which a firm subject 
to a statutory disqualification seeks to become an Exchange member 
organization during the pendency of the process by which the firm is 
seeking relief from the statutory disqualification. For this reason, 
the Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
Therefore, the Commission hereby waives the operative delay and 
designates the proposal operative upon filing.
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    \21\ 17 CFR 240.19b-4(f)(6).
    \22\ 17 CFR 240.19b-4(f)(6)(iii).
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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. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NYSEARCA-2024-108 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-NYSEARCA-2024-108. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NYSEARCA-2024-108 and should 
be submitted on or before January 2, 2025.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-29144 Filed 12-11-24; 8:45 am]
BILLING CODE 8011-01-P
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