[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Notices]
[Pages 22591-22594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08064]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94665; File No. SR-NYSEAMER-2022-16]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Extending 
the Expiration Date of the Temporary Amendments to Rules 9261 and 9830

April 11, 2022.
    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 March 30, 2022, NYSE American LLC (``NYSE American'' 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 extending the expiration date of the 
temporary amendments to Rules 9261 and 9830 as set forth in SR-
NYSEAMER-2020-69 from March 31, 2022 to July 31, 2022, in conformity 
with recent changes by the Financial Industry Regulatory Authority, 
Inc. (``FINRA''). The proposed rule change would not make any changes 
to the text of NYSE American Rules 9261 and 9830. 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 extending the expiration date of the 
temporary amendments as set forth in SR-NYSEAMER-2020-69 \4\ to Rules 
9261 (Evidence and Procedure in Hearing) and 9830 (Hearing) from March 
31, 2022 to July 31, 2022, to harmonize with recent changes by FINRA to 
extend the expiration date of the temporary amendments to its Rules 
9261 and 9830. SR-NYSEAMER-2020-69 temporarily granted to the Chief or 
Deputy Chief Hearing Officer the authority to order that hearings be 
conducted by video conference if warranted by public health risks posed 
by in-person hearings during the ongoing COVID-19 pandemic. The 
proposed rule change would not make any changes to the text of Exchange 
Rules 9261 and 9830.\5\
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    \4\ See Securities Exchange Act Release No. 90085 (October 2, 
2020), 85 FR 63603 (October 8, 2020) (SR-NYSEAMER-2020-69) (``SR-
NYSEAMER-2020-69'').
    \5\ The Exchange may submit a separate rule filing to extend the 
expiration date of the proposed extension beyond July 31, 2022 if 
the Exchange requires additional temporary relief from the rule 
requirements identified in SR-NYSEAMER-2020-69. The amended NYSE 
American rules will revert back to their original state at the 
conclusion of the temporary relief period and any extension thereof.
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Background
    In 2016, NYSE American (then known as NYSE MKT LLC) adopted 
disciplinary rules that are, with certain exceptions, substantially the 
same as the Rule 8000 Series and Rule 9000 Series of FINRA and its 
affiliate the New York Stock Exchange LLC (``NYSE''), and which set 
forth rules for conducting investigations and enforcement actions.\6\

[[Page 22592]]

The NYSE American disciplinary rules were implemented on April 15, 
2016.\7\
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    \6\ See Securities Exchange Act Release Nos. 77241 (February 26, 
2016), 81 FR 11311 (March 3, 2016) (SR-NYSEMKT-2016-30) (``2016 
Notice'').
    \7\ See NYSE MKT Information Memorandum 16-02 (March 14, 2016).
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    In adopting disciplinary rules modeled on FINRA's rules, NYSE 
American adopted the hearing and evidentiary processes set forth in 
Rule 9261 and in Rule 9830 for hearings in matters involving temporary 
and permanent cease and desist orders under the Rule 9800 Series. As 
adopted, the text of Rule 9261 and Rule 9830 are substantially the same 
as the FINRA rules with certain modifications.\8\
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    \8\ See 2016 Notice, 81 FR at 11327 & 11332.
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    In response to the COVID-19 global health crisis and the 
corresponding need to restrict in-person activities, on August 31, 
2020, FINRA filed with the Commission a proposed rule change for 
immediate effectiveness, SR-FINRA-2020-027, which allowed FINRA's 
Office of Hearing Officers (``OHO'') to conduct hearings, on a 
temporary basis, by video conference, if warranted by the current 
COVID-19-related public health risks posed by an in-person hearing. 
Among the rules FINRA amended were Rules 9261 and 9830.\9\
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    \9\ See Securities Exchange Act Release No. 89737 (September 2, 
2020), 85 FR 55712 (September 9, 2020) (SR-FINRA-2020-027) (``SR-
FINRA-2020-027'').
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    Given that FINRA and OHO administers disciplinary hearings on the 
Exchange's behalf, and that the public health concerns addressed by 
FINRA's amendments apply equally to Exchange disciplinary hearings, on 
September 15, 2020, the Exchange filed to temporarily amend Rule 9261 
and Rule 9830 to permit FINRA to conduct virtual hearings on its 
behalf.\10\ In December 2020, FINRA filed a proposed rule change, SR-
FINRA-2020-042, to extend the expiration date of the temporary 
amendments in SR-FINRA-2020-027 from December 31, 2020, to April 30, 
2021.\11\ On December 22, 2020, the Exchange similarly filed to extend 
the temporary amendments to Rule 9261 and Rule 9830 to April 30, 
2021.\12\ On April 1, 2021, FINRA filed a proposed rule change, SR-
FINRA-2021-006, to extend the expiration date of the temporary rule 
amendments to, among other rules, FINRA Rule 9261 and 9830 from April 
30, 2021, to August 31, 2021.\13\ On April 20, 2021, the Exchange filed 
to extend the temporary amendments to Rule 9261 and Rule 9830 to August 
31, 2021.\14\ On August 13, 2021, FINRA filed a proposed rule change, 
SR-FINRA-2021-019, to extend the expiration date of the temporary 
amendments to, among other rules, FINRA Rule 9261 and 9830 from August 
31, 2021, to December 31, 2021.\15\ On August 27, 2021, the Exchange 
filed to extend the temporary amendments to Rule 9261 and Rule 9830 to 
December 31, 2021.\16\ On December 7, 2021, FINRA filed a proposed rule 
change, SR-FINRA-2021-031, to extend the expiration date of the 
temporary amendments in both SR-FINRA-2020-015 and SR-FINRA-2020-027 
from December 31, 2021, to March 31, 2022.\17\ On December 27, 2021, 
the Exchange filed to extend the temporary amendments to Rule 9261 and 
Rule 9830 to March 31, 2022, after which the temporary amendments will 
expire absent another proposed rule change filing by the Exchange.\18\
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    \10\ See note 4, supra.
    \11\ See Securities Exchange Act Release No. 90619 (December 9, 
2020), 85 FR 81250 (December 15, 2020) (SR-FINRA-2020-042).
    \12\ See Securities Exchange Act Release No. 90823 (December 30, 
2020), 86 FR 650 (January 6, 2021) (SR-NYSEAMER-2020-88).
    \13\ See Securities Exchange Act Release No. 91495 (April 7, 
2021), 86 FR 19306 (April 13, 2021) (SR-FINRA-2021-006).
    \14\ See Securities Exchange Act Release No. 91631 (April 22, 
2021), 86 FR 22471 (April 28, 2021) (SR-NYSEAMER-2021-23).
    \15\ See Securities Exchange Act Release No. 92685 (August 17, 
2021), 86 FR 47169 (August 23, 2021) (SR-FINRA-2021-019).
    \16\ See Securities Exchange Act Release No. 92910 (September 9, 
2021), 86 FR 51418 (September 15, 2021) (SR-NYSEAMER-2021-37).
    \17\ See Securities Exchange Act Release No. 93758 (December 13, 
2021), 86 FR 71695 (December 17, 2021) (SR-FINRA-2021-31).
    \18\ See Securities Exchange Act Release No. 93917 (January 6, 
2022), 87 FR 1825 (January 12, 2022) (SR-NYSEAMER-2021-49).
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    While there are material signs of improvement, FINRA has determined 
that uncertainty still remains for the coming months. The continued 
presence of the COVID-19 variants, dissimilar vaccination rates 
throughout the United States, and the current medium to high COVID-19 
community levels in many states indicate that COVID-19 remains an 
active and real public health concern.\19\ Due to the uncertainty and 
the lack of a clear timeframe for a sustained and widespread abatement 
of COVID-19-related health concerns and corresponding restrictions,\20\ 
FINRA believes that there is a continued need for temporary relief 
beyond March 31, 2022.\21\ On March 7, 2022, FINRA accordingly filed to 
extend the expiration date of the temporary rule amendments to, among 
other rules, FINRA Rule 9261 and 9830 from March 31, 2022, to July 31, 
2022.\22\
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    \19\ See Securities Exchange Act Release No. 94430 (March 16, 
2022), 87 FR 16262 (March 22, 2022) (SR-FINRA-2022-004) (``SR-FINRA-
2022-004''). FINRA noted that, for example, on February 18, 2022, 
President Joe Biden continued the national emergency concerning 
COVID-19 beyond March 1, 2022, because COVID-19 ``continues to cause 
significant risk to the public health and safety'' of the United 
States. See Continuation of the National Emergency Concerning the 
Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (February 
23, 2022). See SR-FINRA-2022-004, 87 FR at 16262, n. 6.
    \20\ For instance, FINRA noted that the Centers for Disease 
Control and Prevention (``CDC'') recommends that people wear a mask 
in public indoor settings in areas with a high COVID-19 community 
level regardless of vaccination status or individual risk. See 
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html. Furthermore, numerous states currently 
have COVID-19 restrictions in place. Hawaii requires most people to 
wear masks in indoor public places regardless of vaccination status 
and several other states have mask mandates in certain settings, 
such as healthcare and correctional facilities. See SR-FINRA-2022-
004, 87 FR at 16262, n. 7.
    \21\ See SR-FINRA-2022-004, 87 FR at 16263.
    \22\ See SR-FINRA-2022-004, 87 FR at 16263-4. As a further basis 
for extending the expiration date to July 31, 2022, FINRA noted that 
its Board has approved the submission of a rule proposal to the 
Commission to make permanent the temporary service and filing rules 
originally set forth in SR-FINRA-2020-015. See https://www.finra.org/about/governance/finra-board-governors/meetings/update-finra-board-governors-meeting-december-2021. FINRA 
represented that it is contemplating filing the rule proposal with 
the Commission in the near future and the extension of the temporary 
rule amendments would help to avoid the rules reverting to their 
original form before the permanent rules, if approved by the 
Commission, become effective. FINRA further noted that the proposal 
approved by its Board does not include the temporary rule amendments 
pertaining to video conference hearings originally set forth in SR-
FINRA-2020-027.
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Proposed Rule Change
    Consistent with FINRA's recent proposal, the Exchange proposes to 
extend the expiration date of the temporary rule amendments to NYSE 
American Rules 9261 and 9830 as set forth in SR-NYSEAMER-2020-69 from 
March 31, 2022, to July 31, 2022.
    As set forth in SR-FINRA-2022-004, while there are material signs 
of improvement, uncertainty still remains for the coming months. The 
continued presence of COVID-19 variants, dissimilar vaccination rates 
throughout the United States, and the current medium to high COVID-19 
community levels in many states indicate that COVID-19 remains an 
active and real public health concern.\23\ Due to the uncertainty and 
the lack of a clear timeframe for a sustained and widespread abatement 
of COVID-19-related health concerns and corresponding restrictions,\24\ 
FINRA believes that there is a continued need for temporary relief 
beyond March 31, 2022.\25\ FINRA accordingly proposed to extend the 
expiration date of the

[[Page 22593]]

temporary rule amendments from March 31, 2022, to July 31, 2022.
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    \23\ See note 19, supra.
    \24\ See note 20, supra.
    \25\ See SR-FINRA-2022-004, 87 FR at 16263.
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    The Exchange proposes to similarly extend the expiration date of 
the temporary rule amendments to NYSE American Rules 9261 and 9830 as 
set forth in SR-NYSEAMER-2020-69 from March 31, 2022, to July 31, 2022. 
The Exchange agrees with FINRA that, while there are material signs of 
improvement, uncertainty still remains for the coming months. The 
Exchange also agrees that, due to the uncertainty and the lack of a 
clear timeframe for a sustained and widespread abatement of COVID-19-
related health concerns and corresponding restrictions, for the reasons 
set forth in SR-FINRA-2022-004, there is a continued need for this 
temporary relief beyond March 31, 2022. The proposed change would 
permit OHO to continue to assess, based on critical COVID-19 data and 
criteria and the guidance of health and security consultants, whether 
an in-person hearing would compromise the health and safety of the 
hearing participants such that the hearing should proceed by video 
conference. As noted in SR-FINRA-2022-004, in deciding whether to 
schedule a hearing by video conference, OHO may consider a variety of 
other factors in addition to COVID-19 trends. Similarly, as noted in 
SR-FINRA-2022-004, in SR-FINRA-2020-027, FINRA provided a non-
exhaustive list of other factors OHO may take into consideration, 
including a hearing participant's individual health concerns and access 
to the connectivity and technology necessary to participate in a video 
conference hearing.\26\ The Exchange believes that this is a reasonable 
procedure to continue to follow for hearings under Rules 9261 and 9830 
chaired by a FINRA employee.
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    \26\ See SR-FINRA-2022-004, 87 FR at 16263, n. 15.
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    As noted below, the Exchange has filed the proposed rule change for 
immediate effectiveness and has requested that the SEC waive the 
requirement that the proposed rule change not become operative for 30 
days after the date of the filing, so the Exchange can implement the 
proposed rule change immediately.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\27\ in general, and furthers the objectives of Section 
6(b)(5),\28\ 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. Additionally, the Exchange believes 
the proposed rule change is designed to provide a fair procedure for 
the disciplining of members and persons associated with members, 
consistent with Sections 6(b)(7) and 6(d) of the Act.\29\
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    \27\ 15 U.S.C. 78f(b).
    \28\ 15 U.S.C. 78f(b)(5).
    \29\ 15 U.S.C. 78f(b)(7) & 78f(d).
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    The Exchange believes that the proposed rule change supports the 
objectives of the Act by providing greater harmonization between 
Exchange rules and FINRA rules of similar purpose, resulting in less 
burdensome and more efficient regulatory compliance. As such, the 
proposed rule change will foster cooperation and coordination with 
persons engaged in facilitating transactions in securities and will 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system.
    The proposed rule change, which extends the expiration date of the 
temporary amendments to Exchange rules consistent with FINRA's 
extension to its Rules 9261 and 9830 as set forth in SR-FINRA-2022-004, 
will permit the Exchange to continue to effectively conduct hearings 
during the COVID-19 pandemic. Given the current and frequently changing 
COVID-19 conditions and the uncertainty around when those conditions 
will see meaningful, widespread and sustained improvement, without this 
relief allowing OHO to proceed by video conference, some or all 
hearings may have to be postponed. The ability to conduct hearings by 
video conference will permit the adjudicatory functions of the 
Exchange's disciplinary rules to continue unabated, thereby avoiding 
protracted delays. The Exchange believes that this is especially 
important in matters where temporary and permanent cease and desist 
orders are sought because the proposed rule change would enable those 
hearings to continue to proceed without delay, thereby enabling the 
Exchange to continue to take immediate action to stop significant, 
ongoing customer harm, to the benefit of the investing public.
    As set forth in detail in the SR-NYSEAMER-2020-69, the temporary 
relief to permit hearings to be conducted via video conference 
maintains fair process and will continue to provide fair process 
consistent with Sections 6(b)(7) and 6(d) of the Act \30\ while 
striking an appropriate balance between providing fair process and 
enabling the Exchange to fulfill its statutory obligations to protect 
investors and maintain fair and orderly markets while avoiding the 
COVID-19-related public health risks for hearing participants. The 
Exchange notes that this proposal, like SR-NYSEAMER-2020-69, provides 
only temporary relief. As proposed, the changes would be in place 
through July 31, 2022. As noted in SR-NYSEAMER-2020-69 and above, the 
amended rules will revert back to their original state at the 
conclusion of the temporary relief period and, if applicable, any 
extension thereof.
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    \30\ 15 U.S.C. 78f(b)(7) & 78f(d).
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    Accordingly, the proposed rule change extending this temporary 
relief is in the public interest and consistent with the Act's purpose.

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

    The Exchange does not believe that the proposed temporary 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 is rather 
intended solely to provide continued temporary relief given the impacts 
of the COVID-19 pandemic and the related health and safety risks of 
conducting in-person activities. The Exchange believes that the 
proposed rule change will prevent unnecessary impediments to critical 
adjudicatory processes and its ability to fulfill its statutory 
obligations to protect investors and maintain fair and orderly markets 
that would otherwise result if the temporary amendments were to expire 
on March 31, 2022.

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 \31\ and Rule 19b-4(f)(6) thereunder.\32\ 
Because the proposed rule change does not: (i)

[[Page 22594]]

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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    \31\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \32\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \33\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\34\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposal 
may become operative immediately upon filing. The Exchange has 
indicated that the proposed rule change to extend the expiration date 
will continue to prevent unnecessary impediments to its critical 
adjudicatory processes, and its ability to fulfill its statutory 
obligations to protect investors and maintain fair and orderly markets, 
that would otherwise result if the temporary amendments were to expire 
on March 31, 2022.\35\ Importantly, the Exchange has also stated that 
further extending the relief provided initially in SR-NYSEAMER-2020-69 
immediately upon filing and without a 30-day operative delay will allow 
the Exchange to continue critical adjudicatory and review processes in 
a reasonable and fair manner and meet its critical investor protection 
goals, while also following best practices with respect to the health 
and safety of hearing participants.\36\ The Commission also notes that 
this proposal extends without change the temporary relief previously 
provided by SR-NYSEAMER-2020-69.\37\ As proposed, the changes would be 
in place through July 31, 2022 and the amended rules will revert back 
to their original state at the conclusion of the temporary relief 
period and, if applicable, any extension thereof.\38\ For these 
reasons, the Commission believes that waiver of the 30-day operative 
delay for this proposal is consistent with the protection of investors 
and the public interest. Accordingly, the Commission hereby waives the 
30-day operative delay and designates the proposal operative upon 
filing.\39\
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    \33\ 17 CFR 240.19b-4(f)(6).
    \34\ 17 CFR 240.19b-4(f)(6)(iii).
    \35\ See supra Item II.
    \36\ See SR-FINRA-2022-004, 87 FR at 16264 (noting the same with 
respect to the health and safety of FINRA employees in granting 
FINRA's request to waive the 30-day operative delay so that SR-
FINRA-2022-004 would become operative immediately upon filing).
    \37\ See supra note 4.
    \38\ See supra note 5. As noted above, the Exchange states that 
if it requires temporary relief from the rule requirements 
identified in this proposal beyond July 31, 2022 it may submit a 
separate rule filing to extend the effectiveness of the temporary 
relief under these rules.
    \39\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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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) \40\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \40\ 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-NYSEAMER-2022-16 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-NYSEAMER-2022-16. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEAMER-2022-16 and should be submitted 
on or before May 6, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\41\
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    \41\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-08064 Filed 4-14-22; 8:45 am]
BILLING CODE 8011-01-P


