[Federal Register Volume 84, Number 175 (Tuesday, September 10, 2019)]
[Notices]
[Pages 47571-47575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19463]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-86866; File No. SR-NYSE-2019-47]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to 
Amend Rule 103B

September 4, 2019.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that on August 22, 2019, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by the self-
regulatory organization. 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 103B, which governs the 
allocation of securities to Designated Market Makers (``DMMs''). 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 103B, which governs the 
allocation of securities to qualified DMM units, to make certain 
provisions applicable to Exchange Traded Products (``ETPs'') listing on 
the Exchange. Specifically, as described in more detail below, the 
Exchange proposes to:
     Amend Rule 103B(VI)(F)(1), which governs the allocation of 
closed-end management investment companies (``Funds''), to make it 
applicable also to the allocation of ETPs, and to lengthen to two years 
(from nine months) the time within which additional Funds or ETPs may 
be allocated under this provision without recommencing the Rule 
103B(III) allocation process; and
     amend Rule 103B(VIII), which allows a listing company that 
transfers securities from NYSE Arca, Inc. (``NYSE Arca'') to the 
Exchange to waive the Rule 103B(III) allocation process and select as 
its registered DMM unit the same unit that was previously assigned as 
its NYSE Arca Lead Market Maker (``LMM'') unit, to make it applicable 
also to issuers of ETPs transferring from NYSE Arca to the Exchange.
Background
    Currently, the Exchange trades ETPs on its Pillar trading platform 
on an

[[Page 47572]]

unlisted trading privileges (``UTP'') basis, subject to Pillar Platform 
Rules 1P-13P.\4\ In the next phase of Pillar, the Exchange is 
transitioning the trading of Exchange-listed securities to the Pillar 
trading platform, which means that DMMs will be trading on Pillar in 
their assigned securities.\5\ Once transitioned to Pillar, such 
securities will also be subject to the Pillar Platform Rules 1P-13P.
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    \4\ ``UTP Security'' is defined as a security that is listed on 
a national securities exchange other than the Exchange and that 
trades on the Exchange pursuant to unlisted trading privileges. See 
Rule 1.1.
    \5\ The Exchange began transitioning Exchange-listed securities 
to Pillar on August 5, 2019. See https://www.nyse.com/Pillar. On 
July 30, 2019, the Exchange published a Trader Update setting out a 
complete symbol migration schedule, available at https://www.nyse.com/trader-update/history#.
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    Rules 5P (Securities Traded) and 8P (Trading of Certain Exchange 
Traded Products) provide that certain ETPs \6\ may be listed on the 
Exchange provided that they (1) meet the applicable requirements set 
forth in those rules, and (2) do not have any component NMS Stock \7\ 
that is listed on the Exchange or is based on, or represents an 
interest in, an underlying index or reference asset that includes an 
NMS Stock listed on the Exchange. ETPs listed under Rules 5P and 8P 
would be ``Tape A'' listings and would be traded pursuant to the rules 
applicable to NYSE-listed securities.
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    \6\ Rule 1.1P(k) defines ``Exchange Traded Product'' as a 
security that meets the definition of ``derivative securities 
product'' in Rule 19b-4(e) under the Act.
    \7\ NMS Stock is defined in Rule 600 of Regulation NMS, 17 CFR 
242.600(b)(47).
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    The Exchange does not currently list any ETPs and anticipates that 
it would not do so until all Exchange-listed securities transition to 
Pillar. Once an ETP is listed on the Exchange, it will be assigned to a 
DMM pursuant to Rule 103B.
Current Rule 103B
    Rule 103B(III) sets out the procedures under which DMM units are 
assigned to securities listed on the Exchange: An issuer may either 
select a DMM unit after interviewing all DMM units eligible to 
participate in the allocation process (Rule 103B(III)(A)), or delegate 
the authority for selecting its DMM unit to the Exchange (Rule 
103B(III)(B)).
    In addition, Rule 103B(VI)(F)(1) currently sets out an abbreviated 
DMM allocation process that issuers of closed-end management investment 
companies (``Funds'') may use when they list additional Funds on the 
Exchange within nine months of participating in the Rule 103B(III) 
allocation process. For those subsequent listings within the designated 
nine-month period, the issuer may choose the same DMM unit that it or 
the Exchange selected for the first Fund, or it may select a different 
DMM unit from the group it interviewed in the allocation process for 
the first Fund.
    Current Rule 103B(VI)(F) recognizes that when an issuer of Funds 
lists an initial Fund on the Exchange, that issuer has an opportunity 
to meet with all of the DMM units in connection with selecting a DMM 
for that first Fund. Because that issuer has already interviewed the 
DMM units, the Rule provides that the issuer does not need to repeat 
that process if it chooses to list additional Funds on the Exchange in 
the following months. This Rule therefore reduces duplicative 
administrative burdens for both issuers and DMM units in connection 
with listing Funds from the same issuer.
    In addition, Rule 103B(VIII) currently provides that if a listing 
company transferring from NYSE Arca to the Exchange was assigned an 
NYSE Arca LMM unit that is also a registered DMM unit on the Exchange, 
then the listing company may waive the Rule 103B(III) allocation 
process and select as its registered DMM unit the same unit that was 
previously assigned as its NYSE Arca LMM unit.
    As described below, the Exchange proposes to expand the scope of 
both of these provisions to make them applicable to ETPs trading on the 
Exchange.
Proposed Rule Change
    The Exchange believes that it is appropriate to extend the current 
allocation policy for Funds to ETPs because both share a common 
structure in that a single issuer may be responsible for multiple ETPs 
that are each separate listings. Therefore, an issuer of ETPs that 
meets with DMM units in connection with one listing of an ETP on the 
Exchange would have already met with all DMM units that it could 
potentially select for its subsequent ETP listings. Extending the 
current allocation policy for Funds to ETPs would therefore serve the 
same purpose of reducing duplicative administrative burdens for both 
issuers of ETPs and DMM units.
    The Exchange proposes the following changes to Rule 103B to expand 
the applicability of Rules 103B(VI)(F) and 103B(VIII) to ETPs, as 
follows.
Rule 103B(VI)(F)--Allocation of Closed-End Management Investment 
Companies (``Funds'') or Exchange Traded Products (``ETPs'') From the 
Same Issuer
    Rule 103B(VI)(F) is currently titled ``Allocation of Group of 
Closed-End Management Investment Companies (``Funds'')'' and describes 
the process by which the issuer of a Fund may select the DMM unit for 
additional Funds that it issues within nine months of the first Fund, 
without recommencing the allocation process in Rule 103B(III).
    The Exchange proposes to add ``or Exchange Traded Products 
(``ETPs'')'' to the current title to make clear that the provision 
would apply to issuers of ETPs as well as to issuers of Funds. The 
Exchange also proposes to delete ``Group of'' from the title and add 
the phrase ``from the Same Issuer,'' to clarify that the rule applies 
whenever the same issuer issues more than one Fund or ETP, which is how 
the term ``Group'' is currently used in the Rule.
    To incorporate ETPs into the existing Rule, the Exchange proposes 
to restructure Rule 103B(VI)(F)(1) by adding the subtitle ``Two-Year 
Allocation Policy'' and dividing section (1) into subsections (a) 
through (d), as described below.
    As noted in the proposed title of this subparagraph, the Exchange 
proposes to lengthen to two years, from the current nine months, the 
time period within which an issuer of Funds or ETPs can choose a DMM 
unit from among those it previously interviewed, without recommencing 
the Section III allocation process and re-interviewing DMM units. The 
Exchange believes it is appropriate to lengthen this time period 
because the population of DMM units on the Exchange is relatively 
stable, and neither the population of DMM units nor their 
qualifications are likely to change materially within a two-year 
period. This change will reduce the administrative burden on the 
issuers of Funds or ETPs and on DMM units that would result from the 
requirement that an issuer re-interview all DMM units at least every 
nine months if such issuer lists an additional Fund or ETP.
    Proposed Rule 103B(VI)(F)(1)(a) would include text from the current 
first sentence of current Rule 103B(VI)(F)(1), with the following 
changes. The proposed revised text would add both references to ETPs 
and a cross-reference to Section VIII of Rule 103B. The proposed new 
text would provide that the first time an issuer seeks to list a Fund 
or ETP on the Exchange, the issuer would be subject to the allocation 
process pursuant to Section III of Rule

[[Page 47573]]

103B, unless the listed security is eligible for an allocation under 
Section VIII of Rule 103B. With this change, the Exchange proposes to 
delete the phrase ``Funds listing on the Exchange pursuant to this 
policy'' and replace it with ``The first time an issuer seeks to list a 
Fund or ETP on the Exchange, the issuer,'' to clarify that issuers of 
ETPs, not just issuers of Funds, are subject to the allocation process 
described in Rule 103B(III).
    The proposed change to cross reference Section VIII of Rule 103B 
would provide specificity that Section VIII provides an exception to 
the general requirement that an issuer of an ETP on the Exchange is 
subject to the Section III allocation process if such issuer is 
transferring an ETP from NYSE Arca to the Exchange. (The Exchange's 
proposed amendments to Section VIII are discussed further below.)
    Proposed Rule 103B(VI)(F)(1)(b) would include text from the current 
second and third sentences of current Rule 103B(VI)(F)(1), with the 
following changes. To make this rule text applicable to ETPs, the 
Exchange proposes to add the phrase ``or ETP'' after each instance of 
the word ``Fund,'' and ``or ETPs'' after each instance of the word 
``Funds,'' or replace references to the term ``fund'' with the term 
``issuer'' to clarify that the provision applies not just to Funds but 
also to ETPs. The Exchange also proposes the substantive amendment 
described above, of replacing the reference to ``nine months'' with a 
reference to ``two years.'' The Exchange further proposes to amend the 
current second sentence of Rule 103B(VI)(F)(1) (which would be the 
first sentence of proposed Rule 103B(VI)(F)(1)(b)) to delete the text 
indicating that the nine-month time period runs from the date of the 
issuer's ``initial listing'' on the Exchange, and to add language 
clarifying that the period runs from the date of ``an allocation 
pursuant to Section III of this Rule.'' The Exchange proposes this 
difference to be clear that the Two-Year Allocation Policy would be 
applicable only if an issuer's initial listing was pursuant to Section 
III of Rule 103B. If an initial listing for an issuer of an ETP was 
pursuant to Section VIII of Rule 103B, as described below, the Two-Year 
Allocation Policy would not be applicable because such issuer would not 
have had an opportunity to review other DMM units.
    Proposed Rule 103B(VI)(F)(1)(c) would be new rule text that is 
intended to provide clarity of what an issuer needs to do if it lists 
additional Funds or ETPs after the end of the two-year period. As 
proposed, after the two-year anniversary of the date on which the 
issuer's last allocation pursuant to Section III was made, if the 
issuer seeks to list additional Funds or ETPs on the Exchange, it would 
be subject to the allocation process pursuant to either Section III or 
VIII of this Rule. The new sentence makes clear that if more than two 
years has passed since an issuer of Funds or ETPs undertook the Section 
III allocation process, the issuer can no longer rely on the second 
sentence of Rule 103B(VI)(F)(1) to choose a DMM unit from among those 
it previously interviewed. This limitation ensures that issuers of 
Funds or ETPs do not make their DMM unit selections based on stale 
information, but must re-interview DMM units at least once every two 
years (unless the issuer has an ETP that is transferring from NYSE Arca 
and is eligible for the Section VIII allocation process).
    Proposed Rule 103B(VI)(F)(1)(d) would include text from the current 
fourth sentence of current Rule 103B(VI)(F)(1), with the following 
proposed changes. The Exchange proposes to amend this sentence to add 
``or ETP'' after the word ``Fund,'' to clarify that this provision 
applies to ETPs as well as Funds. The Exchange also proposes to replace 
the reference to the designated ``nine month period'' to ``two year 
period,'' to conform to the proposed amendment discussed above. The 
Exchange also proposes to add language to the end of the fourth 
sentence of Rule 103B(VI)(F)(1) to make clear that the period during 
which the DMM unit will not be included for consideration for 
subsequent listings is the ``Penalty Period as described in Section 
II(J)'' of Rule 103B, not the entire remainder of the two year period.
    The Exchange proposes a non-substantive change to amend Rule 
103B(VI)(F)(1) by capitalizing the word ``Fund'' wherever it appears. 
The Exchange also proposes to make a non-substantive change to the way 
it cites to Rule 103B(III) throughout Rule 103B(VI)(F)(1), by deleting 
references to ``NYSE Rule 103B, Section III'' and replacing them with 
``Section III of this Rule'' wherever they appear.
    The Exchange also proposes to make a grammatical correction to the 
fourth sentence of Rule 103B(VI)(F)(1) by changing ``from 
participating'' to ``to participate.''
Rule 103B(VIII)--Provisions for Allocation of Listed Securities 
Transferring From NYSE Arca to the NYSE
    Rule 103B(VIII) is currently titled ``Provisions for Allocation of 
Listing Companies Transferring from NYSE Arca, Inc. (``NYSE Arca'') to 
the NYSE.'' The Exchange proposes to amend this Section of the Rule to 
specify that ETP listings that transfer from NYSE Arca to the Exchange 
would also be eligible for this provision. The Exchange believes that 
issuers of ETPs should be able to benefit from the efficiencies of 
current Rule 103B(VIII) if an ETPs is transferred from NYSE Arca and 
the assigned LMM is also a DMM unit on the Exchange. To effect this 
change, the Exchange proposes to amend the title by replacing the 
phrase ``Listing Companies'' with ``Listed Securities'' because the 
latter term is broad enough to encompass not only equity listings, but 
also ETPs.
    The Exchange proposes to amend the first sentence of Rule 
103B(VIII)(A) to remove the term ``listing company'' in two places, 
replacing the first with ``listed security'' and the second with 
``issuer.'' The new terms are broad enough to encompass not only equity 
listings, but also ETPs. The Exchange also proposes a non-substantive 
amendment to change the word ``which'' in the first sentence to 
``that'' and to remove the comma preceding the word ``which.''
    The Exchange also proposes to amend the second sentence of Rule 
103B(VIII)(A) and Rule 103B(VIII)(B) to replace the term ``listing 
company'' with the word ``issuer'' each time it occurs. Again, the term 
``issuer'' is broad enough to encompass not only issuers of equity 
listings, but also ETPs.
    Finally, the Exchange proposes to make a non-substantive change to 
the way it cites to Rule 103B(III) throughout Rule 103B(VIII), by 
deleting references to ``NYSE Rule 103B, Section III'' and replacing 
them with ``Section III of this Rule'' wherever they appear.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\8\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\9\ 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 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, 
and because it is not designed to permit unfair

[[Page 47574]]

discrimination between customers, issuers, brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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    In particular, the Exchange believes that the proposed rule change 
would remove impediments to and perfect the mechanism of a free and 
open market and a national market system by providing a method for 
allocating ETPs to DMM units once ETPs begin listing on the Exchange. 
As noted above, after the Exchange transitions Exchange-listed 
securities to Pillar, it will begin listing ETPs on the Exchange 
pursuant to Rules 5P and 8P. Because DMMs would be assigned to any ETPs 
listed on the Exchange, the Exchange proposes to amend Rule 103B to 
specify how ETPs would be allocated to DMMs. The Exchange believes that 
it is appropriate to model the DMM allocation process for ETPs on the 
process already in place for Funds in Rule 103B(VI)(f)(1) because, like 
Fund issuers, issuers of ETPs may seek to issue multiple ETPs in 
succession. Such ETP issuers would face significant administrative 
burdens if they were required to undertake the entire Section III 
allocation process, complete with interviews of all DMM units, each 
time they sought to list another ETP. DMM units would also face 
significant administrative burdens from participating in such 
interviews before the listing of each new ETP.
    The Exchange also believes that the proposal to lengthen to two 
years, from nine months, the time period after which Fund and ETP 
issuers must participate in the Rule 103B(III) allocation process would 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system by eliminating the administrative 
burden of re-interviewing DMM units too frequently. The Exchange 
believes it is appropriate to lengthen this time period because the 
population of DMM units on the Exchange is relatively stable, and 
neither the population of DMM units nor their qualifications are likely 
to change materially within a two-year period. This change will reduce 
the administrative burden on the issuers of Funds or ETPs and on DMM 
units that would result from the requirement that issuers re-interview 
all DMM units at least every nine months. After two years, issuers of 
Funds or ETPs would be required to participate in the Rule 103B(III) 
allocation process (unless the issuer transfers an ETP from NYSE Arca 
and is eligible for the Section VIII allocation process), so that their 
DMM unit selections are not based on stale information.
    Similarly, the Exchange believes that it would remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system to permit issuers of ETPs previously listed on NYSE Arca 
to choose to maintain their current LMM units as their DMM units when 
such ETPs are transferred from NYSE Arca to the Exchange. This option 
already exists for issuers of operating company listings transferring 
from NYSE Arca to the Exchange, and enhances the efficiency of 
transferring listings between exchanges by allowing issuers and DMM 
units to maintain their preexisting relationships with respect to the 
transferred securities. The issuers of ETPs would benefit from the same 
efficiencies when transferring their listings from NYSE Arca to the 
Exchange.
    Finally, the Exchange's proposal to make various technical, non-
substantive changes to the text of the rules--by adding subheadings, 
adding subsection numbering, correcting capitalization and grammar, 
standardizing the format for citations to the Exchange's rules, and 
adding clarifying text--adds clarity and transparency to the Exchange's 
Rules and reduces potential investor confusion, which would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system.

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 because it merely provides a 
process for the allocation of DMM units to ETPs listing on the 
Exchange. Nor does the Exchange believe that the proposed changes would 
impose an undue burden on intramarket competition between the DMM 
units, because all eligible DMM units will participate in the original 
Rule 103B(III) allocation process for an issuer's first ETP or Fund 
that lists on the Exchange, such that the issuer may choose from among 
those DMM units with respect to all ETPs or Funds listed on the 
Exchange in the following two years. Additionally, all DMM units will 
participate in any subsequent Rule 103B(III) process for allocation of 
an issuer's ETPs or Funds that are listed more than two years later.

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 \10\ and Rule 19b-4(f)(6) thereunder.\11\ 
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)(iii) thereunder.
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    \10\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \11\ 17 CFR 240.19b-4(f)(6).
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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) \12\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \12\ 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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2019-47 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-NYSE-2019-47. 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

[[Page 47575]]

only one method. The Commission will post all comments on the 
Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549-1090 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-NYSE-2019-47 and should be 
submitted on or before October 1, 2019.
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    \13\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-19463 Filed 9-9-19; 8:45 am]
 BILLING CODE 8011-01-P


