[Federal Register Volume 82, Number 223 (Tuesday, November 21, 2017)]
[Notices]
[Pages 55460-55466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25141]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82084; File No. SR-NYSENAT-2017-05]


Self-Regulatory Organizations; NYSE National, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the 
Governing Documents of Its Intermediate Parent Companies 
Intercontinental Exchange Holdings, Inc., NYSE Holdings LLC and NYSE 
Group, Inc. To Make Them More Consistent With the Governing Documents 
of Their Ultimate Parent Intercontinental Exchange, Inc.

November 15, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'' or ``Exchange Act'') \2\ and Rule 19b-4 
thereunder,\3\ notice is hereby given that on November 3, 2017, 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 to [sic] amend the governing documents of 
its intermediate parent companies Intercontinental Exchange Holdings, 
Inc. (``ICE Holdings''), NYSE Holdings LLC (``NYSE Holdings''), and 
NYSE Group, Inc. (``NYSE Group'') to make them more consistent with the 
governing documents of their ultimate parent Intercontinental Exchange, 
Inc. (``ICE''), including by (a) streamlining references to ICE 
subsidiaries that either are or control national securities exchanges 
and deleting references to other ICE subsidiaries; and (b) amending the 
provisions regarding limitations on claims, voting and ownership 
concentration limitations, and confidential information. In addition, 
the Exchange proposes to make a non-substantive change to the ICE 
certificate of incorporation. The proposed rule change is available on 
the Exchange's Web site at www.nyse.com, at the principal office of the 
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend the governing documents of its 
intermediate parent companies ICE Holdings, NYSE Holdings, and NYSE 
Group (together, the ``Intermediate Holding Companies'') to make them 
more consistent with the ICE governing documents, including by (a) 
streamlining references to ICE subsidiaries that either are or control 
national securities exchanges and deleting references to other ICE 
subsidiaries; and (b) amending the provisions regarding limitations on 
claims, voting and ownership concentration limitations, and 
confidential information. In addition, the Exchange proposes to make a 
non-substantive change to the ICE certificate of incorporation.
    More specifically, the Exchange proposes to amend the following 
documents (collectively, the ``Governing Documents''):
     Eighth Amended and Restated Certificate of Incorporation 
of ICE Holdings (``ICE Holdings Certificate'') and Fifth Amended and 
Restated Bylaws of ICE Holdings (``ICE Holdings Bylaws'');
     Eighth Amended and Restated Limited Liability Company 
Agreement of NYSE Holdings (``NYSE Holdings Operating Agreement''); and
     Fifth Amended and Restated Certificate of Incorporation of 
NYSE Group (``NYSE Group Certificate'') and Third Amended and Restated 
Bylaws of NYSE Group (``NYSE Group Bylaws'').
    As discussed below, the proposed changes to the Governing Documents 
would make the relevant provisions more consistent with the Fourth 
Amended and Restated Certificate of Incorporation of ICE (``ICE 
Certificate'') and Eighth Amended and Restated Bylaws of ICE (``ICE 
Bylaws'').\4\
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    \4\ See Securities Exchange Act Release No. 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). ICE is a publicly 
traded company listed on the NYSE.
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    ICE, the ultimate parent of the Exchange, owns 100% of the equity 
interest in ICE Holdings, which in turn owns 100% of the equity 
interest in NYSE Holdings. NYSE Holdings owns 100% of the equity 
interest of NYSE Group, which in turn directly owns 100% of the equity 
interest of the Exchange and its national securities exchange 
affiliates, the New York Stock Exchange LLC (``NYSE''), NYSE Arca,

[[Page 55461]]

Inc. (``NYSE Arca''), and NYSE American LLC (``NYSE American'').\5\
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    \5\ The Exchange's affiliates NYSE, NYSE American (previously 
NYSE MKT LLC), and NYSE Arca have each submitted substantially the 
same proposed rule change to propose the changes described herein. 
See SR-NYSE-2017-57, SR-NYSEAmer-2017-29, and SR-NYSEArca-2017-125.
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    In addition, the Exchange proposes to make a nonsubstantive change 
to the ICE Certificate.
Definition of Exchange
    With the exception of the NYSE Group Bylaws, the Governing 
Documents define ``U.S. Regulated Subsidiary'' and ``U.S. Regulated 
Subsidiaries'' and, in the case of the NYSE Group Certificate, 
``Regulated Subsidiary'' and ``Regulated Subsidiaries'' to mean, 
individually or collectively, the four national securities exchanges 
owned by ICE (the NYSE, NYSE American, NYSE Arca, and NYSE National), 
NYSE Arca, LLC, and NYSE Arca Equities, Inc. (``NYSE Arca Equities''), 
or their successors, in each case to the extent that such entities 
continue to be controlled, directly or indirectly, by the relevant 
Intermediate Holding Company. The NYSE Group Bylaws list the relevant 
entities rather than use a defined term.
    Unlike the Governing Documents, the ICE Certificate and ICE Bylaws 
use the defined term ``Exchange'' or ``Exchanges'' instead of ``U.S. 
Regulated Subsidiary'' or ``U.S. Regulated Subsidiaries.'' \6\ 
``Exchange'' is defined as a national securities exchange registered 
under Section 6 of the Exchange Act \7\ that is directly or indirectly 
controlled by ICE.\8\ The Exchange proposes to amend the Governing 
Documents to be consistent with the ICE Certificate and ICE Bylaws by 
using the terms ``Exchange'' instead of ``U.S. Regulated Subsidiary'' 
or ``Regulated Subsidiary.'' Similarly, the Exchange proposes to use 
``Exchange'' or ``Exchanges,'' as applicable, in place of ``U.S. 
Regulated Subsidiaries'' or ``Regulated Subsidiaries,'' and to use 
``Exchange'' or ``Exchanges,'' as applicable, instead of lists of 
specific entities.
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    \6\ See 82 FR 25018, supra note 4, at 25019-25020.
    \7\ 15 U.S.C. 78f.
    \8\ See ICE Certificate, Art. V Sec. A(3)(a), and ICE Bylaws, 
Art. III, Sec. 3.15.
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    As a result of the proposed change, the Governing Documents would 
no longer include references to NYSE Arca, LLC or NYSE Arca Equities. 
The Exchange believes omitting references to NYSE Arca, LLC, a 
subsidiary of NYSE Group, is appropriate because the Exchange Act 
definition of ``exchange'' states that ``exchange'' ``includes the 
market place and the market facilities maintained by such exchange.'' 
\9\ NYSE Arca, as the national securities exchange, has the regulatory 
and self-regulatory responsibility for the NYSE Arca options and 
equities markets. The references to NYSE Arca Equities are obsolete, as 
it has been merged out of existence.\10\
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    \9\ 15 U.S.C. 78c(a)(1).
    \10\ 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 accordingly proposes the following changes:
     In the ICE Holdings Certificate, the definitions of ``U.S. 
Regulated Subsidiary'' and ``U.S. Regulated Subsidiaries'' in Article 
V, Section A.10 would be deleted, and the definition of ``Exchange'' 
added to Article V, Section A(1).\11\ In the ICE Holdings Bylaws, the 
definitions of ``U.S. Regulated Subsidiary'' and ``U.S. Regulated 
Subsidiaries'' in Article III, Section 3.15 would be deleted, and in 
the NYSE Group Certificate, the definitions of ``Regulated Subsidiary'' 
and ``Regulated Subsidiaries'' in Article IV, Section 4(b)(1)(A) would 
be deleted, and the definition of ``Exchange'' added in the deleted 
definitions' place.
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    \11\ The definition of ``Exchange'' would replace ``any U.S. 
Regulated Subsidiary (as defined below)'' in Art. V, Sec. A(1).
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     In Article 1, Section 1.1 of the NYSE Holdings Operating 
Agreement, the definitions of ``New York Stock Exchange,'' ``NYSE 
Arca,'' ``NYSE Arca Equities,'' ``NYSE MKT,'' ``NYSE National,'' ``U.S. 
Regulated Subsidiary,'' and ``U.S. Regulated Subsidiaries'' would be 
deleted and the definition of ``Exchange'' added.
     In the NYSE Group Certificate, Article IV, Section 
4(b)(1)(A)(w), the text ``of the Regulated Subsidiaries, in each case 
to the extent that such entities continue to be controlled, directly or 
indirectly, by the Corporation,'' would be replaced with ``Exchange,'' 
and ``the Regulated Subsidiaries'' would be replaced with ``each 
Exchange.''
     In the NYSE Group Bylaws, the list of national securities 
exchanges, NYSE Arca, LLC, NYSE Arca Equities and their successors in 
Article VII, Section 7.9(b) would be replaced with the definition of 
``Exchange.''
    Throughout the Governing Documents, ``U.S. Regulated Subsidiary,'' 
``U.S. Regulated Subsidiary's,'' ``U.S. Regulated Subsidiaries,'' 
``Regulated Subsidiary,'' ``Regulated Subsidiary's,'' and ``Regulated 
Subsidiaries'' would be replaced with ``Exchange,'' ``Exchange's,'' or 
``Exchanges,'' as applicable. Similarly, lists of any or all of the ICE 
national securities exchanges, NYSE Arca Equities, NYSE Arca, LLC, 
their successors, facilities, or the boards of directors of successors, 
would be replaced with ``Exchange'' or ``Exchanges,'' as 
applicable.\12\
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    \12\ 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'' would be amended to ``the 
boards of directors of each Exchange.''
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    When making such replacements, the Exchange would utilize a comma 
or the terms ``any,'' ``each,'' ``an,'' or ``one or more'' and delete 
the terms ``the'' or ``of the'' as necessary to integrate the term into 
the text. Finally, references to ``their'' would be amended to ``its'' 
as required by the context.\13\
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    \13\ For example, in Article III, Section 3.14(b) of the ICE 
Holdings Bylaws and Article III, Section 3.12(c) of the NYSE 
Holdings Operating Agreement, ``their regulatory authority'' would 
be amended to ``its regulatory authority.''
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Definition of Intermediate Holding Companies
    The ICE Holdings and NYSE Holdings Governing Documents reference 
NYSE Holdings and NYSE Group by name.\14\ The ICE Certificate and ICE 
Bylaws use the defined term ``Intermediate Holding Companies'' instead, 
defining an ``Intermediate Holding Company'' as ``any entity controlled 
by the Corporation that is not itself an Exchange but that directly or 
indirectly controls an Exchange.'' \15\ The Exchange proposes to amend 
the Governing Documents to be consistent with the ICE Certificate and 
ICE Bylaws by using the term ``Intermediate Holding Companies'' instead 
of specific names.
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    \14\ The NYSE Group Governing Documents do not make such 
references because there are no Intermediate Holding Companies 
between NYSE Group and the Exchange or its national securities 
exchange affiliates.
    \15\ See ICE Certificate, Art. V, Sec. A.3(a); ICE Bylaws, Art. 
III, Sec. 3.14(a)(2); and 82 FR 25018, supra note 4, at 25019. The 
Intermediate Holding Companies between ICE and the Exchange are ICE 
Holdings, NYSE Holdings, and NYSE Group.
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    The Exchange accordingly proposes the following changes to the ICE 
Holdings Certificate, Article V, Section A(3)(a); ICE Holdings Bylaws, 
Article III, Section 3.14(a)(2); and NYSE Holdings Operating Agreement:
     In these ICE Holdings Governing Document provisions, the 
initial references to NYSE Holdings or NYSE Group, including the text 
``(if and to the extent that NYSE Group continues to exist as a 
separate entity),'' would be replaced with the definition of 
``Intermediate Holding Company.'' \16\

[[Page 55462]]

The additional references to NYSE Holdings or NYSE Group would be 
replaced with the terms ``Intermediate Holding Company'' and 
``Intermediate Holding Companies,'' as applicable.
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    \16\ In the ICE Holdings Certificate, the word ``respective'' 
also would be deleted.
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     In the NYSE Holdings Operating Agreement, Article 1, 
Section 1.1, the definition of ``NYSE Group'' would be deleted and the 
definition of ``Intermediate Holding Company'' added, and in Article 
III, Section 3.12(b)(2) and Article IX, Section 9.1(a)(3)(A) and 
(b)(3)(A), references to ``NYSE Group (if and to the extent that NYSE 
Group continues to exist as a separate entity)'' would be replaced with 
``Intermediate Holding Companies'' or ``Intermediate Holding Company,'' 
as applicable.
Considerations of the Board
    The ICE Holdings Bylaws, NYSE Holdings Agreement, and NYSE Group 
Certificate have provisions setting forth considerations directors must 
take into account in discharging their responsibilities.\17\ Each such 
provision limits claims against directors, officers and employees as 
well as the relevant Intermediate Holding Company. The Exchange 
proposes to amend such provisions to substantially conform them to the 
analogous provision in the ICE Bylaws, as well as the governing 
documents of other holding companies of national securities exchanges, 
which are substantially similar.\18\
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    \17\ See ICE Holdings Bylaws, Art. III, Sec. 3.14; NYSE Holdings 
Agreement, Art. III, Sec. 3.12; and NYSE Group Certificate Art. V, 
Sec. 8.
    \18\ See ICE Bylaws, Art. III, Sec. 3.14(c); Amended and 
Restated Bylaws of Bats Global Markets Holdings, Inc., Art. VII, 
Sec. 7.2; Amended and Restated Limited Liability Company Agreement 
of BOX Holdings Group LLC, Art. 4, Sec. 4.12; Bylaws of IEX Group, 
Inc., Art. VII, Sec. 34; and Amended and Restated Bylaws of Miami 
International Holdings, Inc., Art. VII, Sec. 1.
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    The Exchange accordingly proposes the following changes to the ICE 
Holdings Bylaws, Article III, Section 3.14(c); NYSE Group Certificate, 
Article V, Section 8; and NYSE Holdings Operating Agreement, Section 
3.12(d):
     The ICE Holdings Bylaws and NYSE Group Certificate 
provisions would be expanded in scope to apply to any ``past or present 
stockholder, employee, beneficiary, agent, customer, creditor, 
community or regulatory authority or member thereof or other person or 
entity,'' and to protect agents as well as directors, officers and 
employees. To implement the change, the Exchange proposes to amend the 
final sentences of the ICE Holdings Bylaws and NYSE Group Certificate 
provisions as follows (deletions [bracketed], additions italicized):

No past or present stockholder, employee, [former employee,] 
beneficiary, agent, customer, creditor, community or regulatory 
authority or member thereof or other person or entity shall have any 
rights against any director, officer, [or] employee or agent of the 
Corporation or the Corporation under this Section . . . .

     The NYSE Holdings Operating Agreement provision would be 
expanded in scope to apply to any ``past or present Manager, employee, 
beneficiary, agent, customer, creditor, community or regulatory 
authority or member thereof or other person or entity,'' and to protect 
agents as well as Managers, officers and employees. To implement the 
change, the Exchange proposes to amend the final sentence of the 
provision as follows (deletions [bracketed], additions italicized):

No past or present Manager, employee, [former employee,] 
beneficiary, agent, customer, creditor, community or regulatory 
authority or member thereof or other person or entity shall have any 
rights against any Manager, officer, [or] employee or agent of the 
Company or the Company under Section 3.12.
Limitations on Voting and Ownership
    The ICE Holdings Certificate, NYSE Holdings Operating Agreement, 
and NYSE Group Certificate have provisions that establish voting and 
ownership concentration limitations on owners of their respective 
common stock above certain thresholds, which apply for so long as the 
relevant Intermediate Holding Company owns any U.S. Regulated 
Subsidiary (the ``Limitation Provisions'').\19\ Such provisions 
authorize the relevant entity's Board of Directors to grant exceptions 
to the voting and ownership concentration limitations if the Board of 
Directors makes certain determinations.
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    \19\ See ICE Holdings Certificate, Art. V, Sec. A and B; NYSE 
Holdings Operating Agreement, Art. IX, Sec. 9.1(a) and (b); and NYSE 
Group Certificate, Art. IV, Sec. 4(b)(1) and (2).
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    The ICE Certificate has a similar voting and ownership 
concentration limitation provision.\20\ The Exchange proposes to amend 
the Limitations Provisions to make them more consistent with the 
provision in the ICE Certificate.
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    \20\ See ICE Certificate, Art. V, Sec. A and B, and 82 FR 25018, 
supra note 4, at 25020.
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Definition of Member
    Currently, the Limitation Provisions include lengthy provisions 
listing the different categories of members and permit holders of each 
of the NYSE, NYSE American, NYSE Arca, and NYSE National.\21\ 
Consistent with the ICE Certificate,\22\ the Exchange proposes to 
replace such provisions with the defined term ``Member,'' or, in the 
case of the NYSE Holdings Operating Agreement, ``Exchange Member,'' 
defined to mean a person that is a ``member'' of an exchange within the 
meaning of Section 3(a)(3)(A) of the Exchange Act.\23\
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    \21\ See ICE Holdings Certificate, Art. V, Sec. A(3)(c); NYSE 
Holdings Operating Agreement, Art. IX, Sec. 9.1(a)(3)(c); and NYSE 
Group Certificate, Art. IV, Sec. 4(b)(1)(A)(y).
    \22\ See ICE Certificate, Art. V, Sec. A(3)(c) and (8).
    \23\ 15 U.S.C. 78c(a)(3)(A). NYSE Holdings uses ``Exchange 
Member'' because, as a limited liability company, it has a Member, 
which is ICE Holdings.
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    The Exchange believes that using ``Member'' or ``Exchange Member'' 
in place of the lists of categories of members and permit holders 
presently in the Governing Documents would simplify the Limitation 
Provisions, avoiding exchange-by-exchange descriptions of categories of 
members and permit holders without substantive change. Each of the 
categories listed--an ETP Holder, OTP Holder or OTP Firm of NYSE Arca, 
a ``member'' or ``member organization'' of the NYSE or NYSE American, 
or an ETP Holder of NYSE National--is a ``member'' of an exchange 
within the meaning of Section 3(a)(3)(A) of the Exchange Act.\24\
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    \24\ 15 U.S.C. 78c(a)(3)(A). Former NYSE Arca Equities ETP 
Holders are now ETP Holders of NYSE Arca. See 82 FR 40044, supra 
note 10, at 40044.
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    The Exchange believes that the use of ``Member'' and the changes to 
remove the descriptions of categories of members and permit holders 
would be appropriate because it would align the Limitation Provisions 
more closely with the ICE Certificate, as well as voting and ownership 
concentration limits in the certificates of incorporation of other 
companies that own one or more national securities exchanges, which use 
a similar description of membership.\25\ The Exchange accordingly 
proposes the following changes:
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    \25\ See Second Amended and Restated Certificate of 
Incorporation of CBOE Holdings, Inc. (``CBOE Certificate''), Art. 
Sixth, Sec. (a)(ii)(C) and (b)(ii)(D) (``Trading Permit Holder''); 
Amended and Restated Certificate of Incorporation of Miami 
International Holdings, Inc., Article Ninth (a)(ii) (``Exchange 
Member'').
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     The definition of ``Member'' would be added to the ICE 
Holdings Certificate, Article V.A.8, and NYSE Group Certificate, 
Article IV, Section 4(b)(1)(F). Articles V.A.8 through 10 of the ICE 
Holdings Certificate would be renumbered accordingly.
     In the NYSE Holdings Operating Agreement, Article I, 
Section 1.1, the definition of ``Exchange Member'' would be added and 
the definitions of ``MKT Member,'' ``NYSE Arca ETP Holder,'' ``NYSE 
Member,'' ``NYSE

[[Page 55463]]

National ETP Holder,'' ``OTP Firm,'' and ``OTP Holder'' would be 
deleted.
     In the NYSE Group Certificate, Article IV, Section 
4(b)(2)(C)(iv), ``an NYSE Arca ETP Holder or an OTP Holder or OTP 
Firm'' would be replaced with ``a Member of any Exchange.''\26\
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    \26\ See ICE Certificate, Art. V, Sec. B(3)(d).
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Approval Requirements for Exceeding Voting and Concentration Limits
    The Exchange proposes that, in the case of a person seeking 
approval to exercise voting rights in excess of 20% of the outstanding 
votes, the amended Limitation Provisions require that neither such 
person nor any of its related persons be a Member of an Exchange, 
instead of referring to the various categories of Exchange membership. 
Accordingly, the Exchange proposes to make the following changes to ICE 
Holdings Certificate, Article V.A.3.c; NYSE Holdings Operating 
Agreement, Article IX, Section 9.1(a)(3)(C); and the NYSE Group 
Certificate, Article IV, Section 4(b)(1)(A)(y):
     In the provisions of the ICE Holdings and NYSE Holdings 
Governing Documents, the text ``NYSE Arca, Inc. (`NYSE Arca') or NYSE 
Arca Equities, Inc. (`NYSE Arca Equities') or any facility of NYSE 
Arca'' would be replaced with ``one or more Exchanges.'' In addition, 
``and'' would be added between clauses (i) and (ii).
     In the provision of the NYSE Group Certificate, ``the NYSE 
Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be 
replaced with ``one or more Exchanges.'' In addition, ``and'' would be 
added between clauses (1) and (2).
     In all three provisions, the text ``a Member (as defined 
below) of any Exchange'' would replace the text from ``an ETP Holder 
(as defined in the NYSE Arca Equities rules'' through the end of the 
paragraph, with the exception that the NYSE Holdings text does not 
include ``(as defined below).''
    In addition, the Exchange proposes the following changes to the ICE 
Holdings Certificate, Article V.A.3.d; NYSE Holdings Operating 
Agreement, Article IX, Section 9.1(a)(3)(D); and the NYSE Group 
Certificate, Article IV, Section 4(b)(1)(A)(z):
     In all three provisions, the text ``NYSE Arca or NYSE Arca 
Equities or any facility of NYSE Arca'' would be replaced with ``one or 
more Exchanges,'' with the exception that the NYSE Group text has the 
word ``the'' at its start. The text ``a Member of any Exchange'' would 
replace the text from ``an NYSE Arca ETP Holder'' through the end of 
the paragraph.
     In the provisions of the ICE Holdings and NYSE Holdings 
Governing Documents, the word ``and'' would be added between (i) and 
(ii). In the provision of the NYSE Group Certificate, the word ``and'' 
would be added between clauses (1) and (2).
    The Exchange proposes that the conditions relating to a person 
seeking approval to exceed the ownership concentration limitation be 
similarly amended. The Exchange accordingly proposes the following 
changes to the ICE Holdings Certificate, Article V.B.3.d; NYSE Holdings 
Operating Agreement, Article IX, Section 9.1(b)(3)(D); and the NYSE 
Group Certificate, Article IV, Section 4(b)(2)(C)(iv):
     The word ``and'' would be added immediately before the 
provisions.
     The text ``NYSE Arca or NYSE Arca Equities or any facility 
of NYSE Arca'' would be replaced with ``any Exchange,'' with the 
exception that the NYSE Group text has the word ``the'' at its start.
     The text from ``an NYSE Arca ETP Holder'' through the end 
of the next three subparagraphs would be deleted and replaced with ``a 
Member of any Exchange.''
Definition of Related Persons
    Currently, the Limitation Provisions include lengthy definitions of 
``Related Persons.'' The Exchange proposes to amend such definitions to 
eliminate the exchange-by-exchange description. Use of ``Member'' would 
permit a simplification, without substantive change, of the portion of 
the definition of the term ``Related Persons'' relating to members and 
trading permit holders. The revised definitions would be the same as 
the definition in the ICE Certificate, subject to differences in 
numbering and, in the NYSE Holdings Operating Agreement, certain 
terms.\27\
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    \27\ See ICE Certificate, Art. V, Sec. A(10). NYSE Holdings uses 
``Interests of the Company'' rather than ``shares of stock of the 
Corporation.''
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    The Exchange accordingly proposes the following changes to the 
definitions of ``Related Persons'' in the ICE Holdings Certificate, 
current Article V.A(9); NYSE Holdings Operating Agreement, Article I, 
Section 1.1; and NYSE Group Certificate, Article IV, Section 
4(b)(1)(E):
     In the fourth subparagraph, the text `` `member 
organization' (as defined in the rules of New York Stock Exchange, as 
such rules may be in effect from time to time), any `member' (as 
defined in the rules of New York Stock Exchange, as such rules may be 
in effect from time to time)'' would be replaced with ``Member, any 
Person.''
     In the fifth subparagraph, the text ``an OTP Firm, any OTP 
Holder that is associated with such Person'' would be replaced with ``a 
natural person and is a Member, any broker or dealer that is also a 
Member with which such Person is associated.''
     In the ICE Holdings Certificate and NYSE Holdings 
Operating Agreement, ``and'' would be added between the seventh and 
eighth subparagraphs. In the NYSE Group Certificate, ``and'' would be 
added between the eighth and ninth subparagraphs.
     In the ICE Holdings Certificate and NYSE Holdings 
Operating Agreement, subparagraphs nine through 12 would be deleted. In 
the NYSE Group Certificate, subparagraphs six and ten through 12 would 
be deleted, and the provisions renumbered accordingly.
Confidential Information
    The Exchange proposes to amend the confidential information 
provisions in the ICE Holdings Bylaws, NYSE Holdings Operating 
Agreement, and NYSE Group Certificate. The proposed amendments would 
make such Governing Documents more consistent with the confidential 
information provision in the ICE Bylaws.\28\
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    \28\ See ICE Bylaws, Art. VIII. See also 82 FR 25018, supra note 
4, at 25020.
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    Accordingly, in the ICE Holdings Bylaws, Article VIII, Section 
8.3(b); NYSE Holdings Operating Agreement, Article XII, Section 12.3; 
and NYSE Group Certificate, Article X, the text ``U.S. Regulated 
Subsidiary or any other U.S. Regulated Subsidiary over which such U.S. 
Regulated Subsidiary has regulatory authority or oversight'' would be 
replaced with ``Exchange.'' \29\
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    \29\ The text of the NYSE Group Certificate uses ``Regulated 
Subsidiary'' instead of ``U.S. Regulated Subsidiary.''
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    The proposed change would remove the provisions that allow any U.S. 
Regulated Subsidiary to inspect and copy the books and records of 
another U.S. Regulated Subsidiary over which the first has regulatory 
authority or oversight. As a result, the confidential information 
provisions would no longer provide that NYSE Arca may inspect the books 
and records of NYSE Arca, LLC or NYSE Arca Equities. However, the 
proposed change would have no substantive effect, because pursuant to 
NYSE Arca Rule 3.12 \30\ NYSE Arca

[[Page 55464]]

would retain its authority over the books and records of NYSE Arca, 
LLC, and NYSE Arca Equities no longer exists. The NYSE, NYSE American, 
NYSE Arca and NYSE National do not have regulatory authority or 
oversight over each other.
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    \30\ NYSE Arca Rule 3.12 provides, among other things, that the 
books and records of NYSE Arca, LLC are deemed to be the books and 
records of NYSE Arca for purposes of and subject to oversight 
pursuant to the Exchange Act and subject to inspection and copying 
by NYSE Arca. See ICE Bylaws, Art. VIII, Sec. 8.3.
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    The Exchange proposes the following additional changes to the 
provisions:
     In the ICE Holdings Bylaws, Article VIII, Sections 8.1 and 
8.2, and NYSE Holdings Operating Agreement, Article XII, Sections 12.1 
and 12.2, ``U.S. Subsidiaries' Confidential Information'' would be 
amended to ``Exchange Confidential Information.''
     In the NYSE Holdings Operating Agreement, Article 1, 
Section 1.1, the definition of ``U.S. Subsidiaries' Confidential 
Information'' would be deleted and the definition of ``Exchange 
Confidential Information'' added.
Additional Proposed Changes to the Governing Documents
    In addition to the above, the Exchange proposes that Article II of 
the ICE Holdings Certificate be updated to include the name and 
building of its registered office in the State of Delaware. In 
addition, conforming changes would be made to the title, recitals, date 
and signature line, as applicable, of the Governing Documents.
ICE Certificate
    The Exchange proposes to make a non-substantive amendment to 
Article V, Section A(3)(a) of the ICE Certificate. Due to an oversight, 
the text of the ICE Certificate approved by the ICE shareholders at the 
ICE annual meeting omitted the word ``respective'' from Article V, 
Section A(3)(a).\31\ To conform the ICE Certificate filed with the 
Commission to the text approved by the shareholders, the Exchange 
proposes to delete the word ``respective'' from clause (i) of the 
provision, which would read as follows (proposed deletion in bracket):
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    \31\ See Intercontinental Exchange, Inc. Notice of 2017 Annual 
Meeting and Proxy Statement, at page A-5, available at https://
ir.theice.com/~/media/Files/I/Ice-IR/quarterly-results/2016/proxy-
statement-2016.pdf.

will not impair the ability of any national securities exchange 
registered under Section 6 of the Exchange Act that is directly or 
indirectly controlled by the Corporation (each such national 
securities exchange so controlled, an ``Exchange''), any entity 
controlled by the Corporation that is not itself an Exchange but 
that directly or indirectly controls an Exchange (each such 
controlling entity, an ``Intermediate Holding Company'') or the 
Corporation to discharge their [respective] responsibilities under 
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the Exchange Act and the rules and regulations thereunder . . . .

    The Exchange does not propose to make any other changes to the ICE 
Certificate.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \32\ in general, and with Section 
6(b)(1) \33\ 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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    \32\ 15 U.S.C. 78f(b).
    \33\ 15 U.S.C. 78f(b)(1).
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    In particular, the Exchange believes that the proposed amendments 
to replace references to the U.S. Regulated Subsidiaries and to the 
NYSE, NYSE American, NYSE Arca, NYSE Arca, LLC and NYSE Arca Equities 
with references to an ``Exchange'' or the ``Exchanges,'' as 
appropriate, would contribute to the orderly operation of the Exchange 
by adding clarity and transparency to the Exchange's rules by 
eliminating references in the Governing Documents to entities that are 
not national securities exchanges. The Exchange Act definition of 
``exchange'' states that ``exchange'' ``includes the market place and 
the market facilities maintained by such exchange.'' \34\ Accordingly, 
all market places and market facilities maintained by an Exchange would 
fall within the definition of Exchange and therefore would fall within 
the scope of the Governing Documents. The Exchange notes that the 
proposed change would align the Governing Documents voting and 
ownership concentration limits in the certificates of incorporation of 
other companies that own one or more national securities exchanges, 
which do not include references to subsidiaries other than national 
securities exchanges.\35\ In addition, it would contribute to the 
orderly operation of the Exchange by adding clarity and transparency to 
the Exchange's rules by eliminating obsolete references to NYSE Arca 
Equities, which has been merged out of existence.
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    \34\ 15 U.S.C. 78c(a)(1).
    \35\ See CBOE Certificate, Art. Fifth, Sec. (a)(v), and Art. 
Sixth, Sec. (a)(ii)(A) (``Regulated Securities Exchange 
Subsidiaries''); and Amended and Restated Certificate of 
Incorporation of Bats Global Markets Holdings, Inc., Art. Fifth, 
Sec. (2) (``Exchange Subsidiaries'').
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    As a result of the proposed use of ``Exchanges'' instead of ``U.S. 
Regulated Subsidiaries,'' the confidential information provisions of 
the Governing Documents would no longer provide that any U.S. Regulated 
Subsidiary is authorized to inspect the books and records of another 
U.S. Regulated Subsidiary over which the first has regulatory authority 
or oversight, including that NYSE Arca may inspect the books and 
records of NYSE Arca, LLC or NYSE Arca Equities. The proposed change 
would add further clarity and transparency to the Exchange's rules 
without having a substantive effect, as, pursuant to NYSE Arca Rule 
3.12, NYSE Arca would retain its authority over the books and records 
of NYSE Arca, LLC, NYSE Arca Equities no longer exists and the NYSE, 
NYSE American, NYSE Arca and NYSE National do not have regulatory 
authority or oversight over each other.
    The Exchange believes that the proposed use in the Governing 
Documents of the defined term ``Intermediate Holding Company'' in place 
of lists of intermediate holding companies would contribute to the 
orderly operation of the Exchange by adding clarity and transparency to 
the Exchange's rules by eliminating references to entities that are not 
national securities exchanges without making a substantive change.
    Similarly, the Exchange believes that the proposed use of the 
defined term ``Member'' in place of lists of categories of members and 
permit holders in the Limitation Provisions would simplify the 
provisions without substantive change, avoiding exchange-by-exchange 
descriptions of categories of members and permit holders, as each of 
the categories currently listed is a ``member'' of an exchange within 
the meaning of Section 3(a)(3)(A) of the Exchange Act.\36\ Such use of 
``Member,'' along with the simplification of the definition of 
``Related Persons'' in the Limitation Provisions, would add clarity and 
transparency to the Exchange's rules as well as align the Limitation 
Provisions with the ICE Certificate voting and ownership concentration 
limits and with the voting and ownership concentration limits in the 
certificates of incorporation of other companies that own one or more 
national securities exchanges, which

[[Page 55465]]

use a similar description of membership.\37\
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    \36\ 15 U.S.C. 78c(a)(3)(A). Former NYSE Arca Equities ETP 
Holders are now ETP Holders of NYSE Arca. See 82 FR 40044, supra 
note 10, at 40044.
    \37\ See note 25, supra.
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    For similar reasons, the Exchange also believes that this filing 
furthers the objectives of Section 6(b)(5) of the Exchange Act \38\ 
because the proposed rule change would be consistent with and would 
create a governance and regulatory structure that is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to, and perfect the mechanism of a 
free and open market and a national market system and, in general, to 
protect investors and the public interest.
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    \38\ 15 U.S.C. 78f(b)(5).
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    Specifically, the proposed amendments (1) replacing references to 
the U.S. Regulated Subsidiaries, Regulated Subsidiaries, and to the 
NYSE, NYSE American, NYSE Arca, NYSE Arca, LLC and NYSE Arca Equities 
with references to an ``Exchange'' or the ``Exchanges,'' as 
appropriate; (2) using ``Intermediate Holding Company'' in place of 
lists of intermediate holding companies; (3) using ``Member'' in place 
of the lists of categories of members and permit holders in the 
Limitation Provisions; (4) simplifying the definition of ``Related 
Persons'' in the Limitation Provisions; (5) removing the ability of a 
U.S. Regulated Subsidiary to inspect the books and records of other 
U.S. Regulated Subsidiaries; and (6) making conforming changes to the 
Governing Documents, would remove impediments to and perfect the 
mechanism of a free and open market by simplifying and streamlining the 
Exchange's rules and removing obsolete references, thereby ensuring 
that persons subject to the Exchange's jurisdiction, regulators, and 
the investing public can more easily navigate and understand the 
Governing Documents.
    The Exchange believes that the proposed amendments to the Governing 
Document provisions limiting claims against directors, officers and 
employees, as well as the relevant Intermediate Holding Company, would 
remove impediments to, and perfect the mechanism of a free and open 
market and a national market system and, in general, protect investors 
and the public interest because the proposed changes would conform the 
provision to the analogous statement in the ICE Certificate, as well as 
in the governing documents of other holding companies of national 
securities exchanges, which are substantially similar.\39\
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    \39\ See note 18, supra.
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    Finally, the Exchange believes that its proposed non-substantive 
amendment to Article V, Section A(3)(a) of the ICE Certificate would 
remove impediments to, and perfect the mechanism of a free and open 
market and a national market system and, in general, to protect 
investors and the public interest because it would ensure that the ICE 
Certificate filed with the Commission conforms to the text approved by 
the ICE shareholders at the ICE annual meeting.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Exchange Act. The proposed rule 
change is not designed to address any competitive issue but rather 
update and streamline the Intermediate Holding Company governing 
documents to make them more consistent with the governing documents of 
ICE, their ultimate parent, including by (a) streamlining references to 
ICE subsidiaries that either are or control national securities 
exchanges and deleting references to other ICE subsidiaries; and (b) 
amending the provisions regarding limitations on claims, voting and 
ownership concentration limitations, and confidential information.
    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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \40\ and Rule 19b-4(f)(6) thereunder.\41\ 
Because the 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 prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) thereunder.\42\
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    \40\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \41\ 17 CFR 240.19b-4(f)(6).
    \42\ 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 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 such 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 under 
Section 19(b)(2)(B)\43\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \43\ 15 U.S.C. 78s(b)(2)(B).
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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-2017-05 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-2017-05. 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

[[Page 55466]]

Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the 
submission, all subsequent amendments, all written statements with 
respect to the proposed rule change that are filed with the Commission, 
and all written communications relating to the proposed rule change 
between the Commission and any person, other than those that may be 
withheld from the public in accordance with the provisions of 5 U.S.C. 
552, will be available for Web site viewing and printing in the 
Commission's Public Reference Room, 100 F Street NE., Washington, DC 
20549, on official business days between 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-2017-05 and should be submitted 
on or before December 12, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\44\
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    \44\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-25141 Filed 11-20-17; 8:45 am]
 BILLING CODE 8011-01-P


