[Federal Register Volume 81, Number 217 (Wednesday, November 9, 2016)]
[Notices]
[Pages 78880-78884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27024]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79231; File No. SR-NYSEMKT-2016-90]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending Its Rules 
Concerning Payment of Compensation and Rebates, and Research Analyst 
Attestation Requirements in Order To Harmonize With Certain FINRA Rules 
and Make Other Conforming Changes

November 3, 2016.
    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 October 19, 2016, NYSE MKT LLC (``NYSE MKT'' 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 its rules regarding (1) payment of 
compensation and rebates, and (2) research analyst attestation 
requirements in order to harmonize with certain Financial Industry 
Regulatory Authority, Inc. (``FINRA'') rules and make other conforming 
changes. 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 amending its rules concerning (1) payment of 
compensation and rebates, and (2) research analyst attestation 
requirements in order to harmonize with certain FINRA rules and make 
other conforming changes. Specifically, the Exchange proposes to:
     Delete Rule 353--Equities (Rebates and Compensation),\4\ 
adopt the text of FINRA Rule 2040 (Payments to Unregistered Persons) 
(including Supplementary Material .01) and add new Supplementary 
Material .02 as new Rule 2040--Equities, and amend Rule 8311 (Effect of 
a Suspension, Revocation, Cancellation, or Bar) (including adding 
Supplementary Material .01) in order to harmonize its rules with 
FINRA's rules regarding the payment of transaction-based compensation 
by members to unregistered persons;
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    \4\ References to rules are to NYSE MKT rules unless otherwise 
indicated.
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     delete Rule 351--Equities (Reporting Requirements) 
(including Supplementary Material .11 and .12) and amend Rules 472--
Equities (Communications With The Public) and 9217 (Violations 
Appropriate for Disposition Under Rule 9216(b)) to harmonize with 
FINRA's rules regarding annual attestation requirements for research 
analysts; and
     make certain technical and conforming changes.\5\
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    \5\ As discussed below, the conforming changes the Exchange 
proposes would substitute the term ``member organization'' for 
``member'' and the term ``Exchange'' for ``FINRA.''
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Background
    In 2007, the Exchange's affiliate the New York Stock Exchange LLC

[[Page 78881]]

(``NYSE'') and FINRA \6\ entered into an agreement (the ``Agreement'') 
pursuant to Rule 17d-2 under the Act to reduce regulatory duplication 
by allocating to FINRA certain regulatory responsibilities for NYSE 
rules and rule interpretations (``FINRA Incorporated NYSE Rules'').\7\ 
The Exchange became a party to the Agreement effective December 15, 
2008.\8\
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    \6\ NYSE Regulation, Inc., a former not-for-profit subsidiary of 
the NYSE, was also a party to the Agreement by virtue of the fact 
that it performed regulatory functions for the NYSE pursuant to a 
delegation agreement. See Securities Exchange Act Release No. 53382 
(February 27, 2006), 71 FR 11251, 11264-65 (March 6, 2006) (SR-NYSE-
2005-77) (approving delegation agreement). NYSE Regulation also 
performed regulatory services for the Exchange pursuant to an 
intercompany Regulatory Services Agreement (``RSA'') that gave the 
Exchange the contractual right to review NYSE Regulation's 
performance. The delegation agreement and related RSA terminated on 
February 16, 2016, and NYSE Regulation has ceased providing 
regulatory services to the Exchange, which has re-integrated its 
regulatory functions.
    \7\ See Securities Exchange Act Release Nos. 56148 (July 26, 
2007), 72 FR 42146 (August 1, 2007) (File No. 4-544) (order 
approving the Agreement); 56147 (July 26, 2007), 72 FR 42166 (August 
1, 2007) (SR-NASD-2007-054) (order approving the incorporation of 
certain NYSE Rules as ``Common Rules''). Paragraph 2(b) of the 
Agreement sets forth procedures regarding proposed changes to the 
substance of any of the Common Rules.
    \8\ See Securities Exchange Act Release Nos. 56148 (July 26, 
2007), 72 FR 42146 (August 1, 2007) (File No. 4-544) (order 
approving the Agreement); 56147 (July 26, 2007), 72 FR 42166 (August 
1, 2007) (SR-NASD-2007-054) (order approving the incorporation of 
certain NYSE Rules as ``Common Rules''); 60409 (July 30, 2009), 74 
FR 39353 (File No. 4-587) (August 6, 2009) (order approving the 
amended and restated Agreement, adding NYSE MKT as a party). 
Paragraph 2(b) of the Agreement sets forth procedures regarding 
proposed changes by FINRA, NYSE or NYSE MKT to the substance of any 
of the Common Rules.
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    In order to reduce regulatory duplication and relieve firms that 
are members of the Exchange, the NYSE and FINRA of conflicting or 
unnecessary regulatory burdens, FINRA has been reviewing and amending 
the NASD and FINRA Incorporated NYSE Rules in order to create a 
consolidated FINRA rulebook.\9\
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    \9\ FINRA's rulebook currently has three sets of rules: (1) NASD 
Rules, (2) FINRA Incorporated NYSE Rules, and (3) consolidated FINRA 
Rules. The FINRA Incorporated NYSE Rules apply only to those members 
of FINRA that are also members of the NYSE (``Dual Members''), while 
the consolidated FINRA Rules apply to all FINRA members. For more 
information about the FINRA rulebook consolidation process, see 
FINRA Information Notice, March 12, 2008.
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Payment of Transaction-Based Compensation
    As part of the rule consolidation process, in 2014, FINRA adopted 
FINRA Rule 2040 regarding payment of transaction-based compensation by 
members or associated persons to unregistered persons.\10\ The 
requirements of Incorporated NYSE Rule 353, which are the same as Rule 
353--Equities,\11\ were consolidated into the new FINRA rule, and FINRA 
deleted Incorporated NYSE Rule 353.\12\
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    \10\ See Securities Exchange Act Release Nos. 73210 (September 
25, 2014), 79 FR 59322 (October 1, 2014) (SR-FINRA-2014-037) 
(``FINRA Notice'') and 73954 (December 30, 2014), 80 FR 553 (January 
6, 2015) (SR-FINRA-2014-37) (``FINRA Approval Order'').
    \11\ Rule 353(a)--Equities, like the NYSE Rule, prohibits a 
member, principal executive, registered representative or officer 
from, directly or indirectly, rebating to any person any part of the 
compensation he receives from the solicitation of orders for the 
purchase or sale of securities or other similar instruments for the 
accounts of customers of the member, or pay such compensation, or 
any part thereof, as a bonus, commission, fee or other consideration 
for business sought or procured for him or for any other member. 
Rule 353(b)--Equities further provides that a member, principal 
executive, registered representative or officer cannot be 
compensated for business done by or through his employer after the 
termination of his employment except as may be permitted by the 
Exchange.
    \12\ FINRA also incorporated the requirements of Incorporated 
NYSE Rule Interpretation 345(a)(i)/01 (Compensation to Non-
Registered Persons), Incorporated NYSE Rule Interpretation 
345(a)(i)/02 (Compensation Paid for Advisory Solicitations), and 
NYSE Rule Interpretation 345(a)(i)/03 (Compensation to Non-
Registered Foreign Persons Acting as Finders) into its Rule 2040. 
The Exchange did not adopt these interpretations when it adopted 
NYSE Rule 345.
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    In the same filing, FINRA amended FINRA Rule 8311 to eliminate 
duplicative provisions in NASD IM-2420-2 (Continuing Commissions 
Policy) \13\ and clarify the scope of the rule on payments by members 
to persons subject to suspension, revocation, cancellation, bar or 
other disqualification and added new Supplementary Material .01 
(Remuneration Accrued Prior to Effective Date of Sanction or 
Disqualification) expressly permitting a member to pay to any person 
subject to a sanction or disqualification any remuneration pursuant to 
an insurance or medical plan, indemnity agreement relating to legal 
fees, or as required by an arbitration award or court judgment.\14\
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    \13\ NASD IM-2420-2 allows members to pay continuing commissions 
to former registered representatives after they cease to be employed 
by a member, if, among other things, a bona fide contract between 
the member and the registered representative calling for the 
payments was entered into in good faith while the person was a 
registered representative of the employing member. See FINRA Notice, 
79 FR at 59326. Rule 353(b)--Equities, on the other hand, provides 
that a member, principal executive, registered representative or 
officer cannot be compensated for business done by or through his 
employer after the termination of his employment except as may be 
permitted by the Exchange.
    \14\ FINRA Approval Order, 80 FR at 556-57.
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Research Analyst Attestation Requirements
    In 2011, the Exchange adopted FINRA Rule 4530 (Reporting 
Requirements) as Rule 4530--Equities. FINRA Rule 4530 was modeled in 
part on former NYSE Rule 351(a)-(d) governing trade investigation 
reporting requirements, which the Exchange adopted as Rule 351--
Equities.\15\ The Exchange retained Rule 351(f)--Equities, which 
requires a letter of attestation signed by a principal executive that 
the member or member organization has established and implemented 
procedures reasonably designed to comply with the provisions of Rule 
472--Equities, that each research analyst's compensation was reviewed 
and approved in accordance with the requirements of Rule 472(h)(2)--
Equities, and that the basis for such approval has been documented. At 
the time, the Exchange noted that NYSE Rules 351(f)--Equities, 351.11--
Equities and 351.12--Equities governing the annual attestation 
requirement would be addressed as part of the research analyst conflict 
of interest rules.\16\
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    \15\ See Securities Exchange Act Release No. 64784 (June 30, 
2011), 76 FR 39947, 39948 (July 7, 2011) (SR-NYSEAmex-2011-42).
    \16\ See id. at 39948, n.8.
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    In 2015, FINRA adopted FINRA Rule 2241 (Research Analysts and 
Research Reports), which deleted the requirement to attest annually 
that the firm has in place written supervisory policies and procedures 
reasonably designed to achieve compliance with the applicable 
provisions of the rules, including the compensation committee review 
provision.\17\ As FINRA explained in its filing, firms were already 
obligated pursuant to NASD Rule 3010 (Supervision) to have a 
supervisory system reasonably designed to achieve compliance with all 
applicable securities laws and regulations and FINRA rules. Moreover, 
the research rules also were subject to the supervisory control rules 
(NASD Rule 3012) and the annual certification requirement regarding 
compliance and supervisory processes embodied in FINRA Rule 3130. As 
such, FINRA did not believe that a separate attestation requirement for 
the research rules was necessary.\18\
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    \17\ See Securities Exchange Act Release No. 75471 (July 16, 
2015), 80 FR 43482, 43488 (July 22, 2015) (SR-FINRA-2014-047) 
(``Release No. 75471'').
    \18\ See id. NASD Rules 3010 and 3012 referred to in the 
approval order were adopted with changes as FINRA Rules 3110 
(Supervision) and 3120 (Supervisory Control System). See id., n. 83; 
Securities Exchange Act Release No. 71179 (December 23, 2013), 78 FR 
79542 (December 30, 2013) (SR-FINRA-2013-025).

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[[Page 78882]]

    The attestation requirement in current Rule 351(f)--Equities is 
inconsistent with FINRA Rule 2241, thereby presenting member 
organizations that are also FINRA members with inconsistent 
requirements. Moreover, the Exchange has adopted FINRA Rules 3110, 3120 
and 3130 as Rules 3110--Equities, 3120--Equities and 3130--
Equities.\19\ Exchange member organizations are therefore subject to 
the same supervisory requirements as FINRA member firms, including the 
annual certification requirement regarding compliance and supervisory 
processes in Rule 3130--Equities.
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    \19\ See Securities Exchange Act Release No. 73640 (November 19, 
2014), 79 FR 70237 (November 25, 2014) (SR-NYSEMKT-2014-93) 
(adopting FINRA Rules 3110 and 3120); Securities Exchange Act 
Release No. 59656 (March 30, 2009), 74 FR 15540 (April 6, 2009) (SR-
NYSEALTR-2009-26) (adopting FINRA Rule 3130).
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Proposed Rule Changes
Payment of Transaction-Based Compensation
Deletion of Rule 353--Equities and Adoption of FINRA Rule 2040
    In light of FINRA's adoption of a comprehensive rule regarding the 
payment of transaction-based compensation, the Exchange proposes to 
adopt the text of FINRA Rule 2040 as NYSE MKT Rule 2040--Equities and 
delete Rule 353--Equities, the Exchange's current rule governing 
rebates and compensation. As noted above, the requirements of NYSE MKT 
Rule 353--Equities have been consolidated into the FINRA rule, making 
them redundant.\20\ For consistency with FINRA rules, the Exchange 
proposes to: (1) Change references to ``member'' in the text of FINRA 
Rule 2040 (including Supplementary Material .01) to ``member 
organization''; \21\ (2) change references to ``FINRA'' in the text of 
FINRA Rule 2040 (including Supplementary Material .01) to ``the 
Exchange''; and (3) change the reference in Rule 2040(c)(1) to 
``disqualification as defined in Article III, Section 4 of FINRA's By-
Laws'' to ``statutory disqualification as defined in Section 3(a)(39) 
of the Securities Exchange Act of 1934.'' In addition, in order to 
ensure that proposed Rule 2040--Equities and FINRA Rule 2040 are fully 
harmonized, the Exchange also proposes to add Supplementary Material 
.02 to proposed Rule 2040 to provide that, for purposes of the rule, 
the term ``associated person'' shall have the same meaning as the terms 
``person associated with a member'' or ``associated person of a 
member'' as defined in Article I (rr) of the FINRA ByLaws. The proposed 
Rule is otherwise the same as its FINRA counterpart.
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    \20\ See FINRA Approval Order, 80 FR at 555 & 557. See also 
notes 10-12 and accompanying text, supra.
    \21\ Under Exchange rules, ``member organization'' is the 
equivalent term to FINRA's ``member.'' See note 25, infra.
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Amendment to Rule 8311 To Reflect Recent Amendments to FINRA Rule 8311
    To reflect FINRA's recent amendments to FINRA Rule 8311, the 
Exchange proposes certain amendments to NYSE MKT Rule 8311 to fully 
harmonize the two rules.\22\ First, the Exchange proposes to delete the 
word ``or'' in the heading and add the phrase ``or Other 
Disqualification.'' The first paragraph would be become subsection (a) 
and the text would be harmonized with FINRA Rule 8311(a).
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    \22\ Rule 8311 provides that if the Commission or the Exchange 
imposed a suspension, revocation, cancellation or bar on a covered 
person, a member organization or ATP Holder may not permit such 
person to remain associated, and, in the case of a suspension, may 
not pay any remuneration that results from any securities 
transaction. Rule 8311 applies to both the Exchange's equities and 
options markets.
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    Proposed Rule 8311(a) would clarify the scope of payments by member 
organizations to persons subject to suspension, revocation, 
cancellation, bar (each a ``sanction'') or other disqualification and 
would provide that if a person is subject to a sanction or other 
disqualification, a member organization may not allow such person to be 
associated with it in any capacity that is inconsistent with the 
sanction imposed or disqualified status, including a clerical or 
ministerial capacity. Proposed Rule 8311(a) would further provide that 
a member organization may not pay or credit to any person subject to a 
sanction or disqualification, during the period of the sanction or 
disqualification or any period thereafter, any salary, commission, 
profit, or any other remuneration that the person might accrue, not 
just earn, during the period of the sanction or disqualification. The 
Exchange also proposes to add a new sentence to proposed Rule 8311(a) 
providing that a member organization may make payments or credits to a 
person subject to a sanction that are consistent with the scope of 
activities permitted under the sanction where the sanction solely 
limits an associated person from conducting specified activities (such 
as a suspension from acting in a principal capacity) or to a 
disqualified person that has been approved (or is otherwise permitted 
pursuant to Exchange rules and the federal securities laws) to 
associate with a member organization.
    Further, the Exchange proposes to add a new subsection (b) and new 
proposed Supplementary Material .01 that, with the exception of 
conforming references to ``members'' in the text of FINRA Rule 8311 to 
``member organizations'' and references to ``FINRA'' to ``the 
Exchange,'' would be identical to the recent amendments to FINRA Rule 
8311.
    The Exchange believes that the proposed Rule complements proposed 
Rule 2040 and would harmonize the Exchange's rules on payments by 
member organizations to persons subject to suspension, revocation, 
cancellation, bar or other disqualification.
Research Analyst Attestation Requirements
Deletion of Rule 351(f)--Equities and Supplementary Material .11 and 
.12
    In light of FINRA's elimination of an annual attestation 
requirement when it adopted FINRA Rule 2241,\23\ the Exchange proposes 
to delete Rule 351(f)--Equities and Supplementary Material .11 and .12, 
thereby eliminating inconsistent requirements for member organizations 
that are also FINRA members.\24\ As noted above, Exchange member 
organizations are also subject to the same supervisory requirements as 
FINRA member firms, including the annual certification requirement 
regarding compliance and supervisory processes in Rule 3130--Equities.
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    \23\ See Release No. 75471, 80 FR at 43488.
    \24\ The Exchange has not adopted FINRA Rule 2241. Under Rule 
2(b)(i), member organizations that transact business with public 
customers must at all times be members of FINRA and, as such, would 
be subject to FINRA's rules, including the requirements of Rule 
2241.
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    The Exchange proposes to mark the entire Rule as ``Reserved'' and 
delete headings (a) through (e), which have no content and are marked 
``Reserved''.
Conforming Changes
    The Exchange proposes the following conforming changes. First, the 
Exchange would substitute the term ``member organization'' for 
``member'' \25\ and the

[[Page 78883]]

term ``Exchange'' for ``FINRA'' in proposed Rule 2040--Equities and in 
the changes proposed for Rule 8311. Second, the Exchange would delete 
references to Rule 351--Equities in Rules 472(c) and (h)--Equities, 
governing communications with the public, and 9217, which sets forth 
the rules included in NYSE MKT's minor rule violation plan.
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    \25\ The term ``member'' has different meanings under FINRA and 
Exchange rules. Under FINRA Rule 0160(b)(10), a ``member'' means an 
individual, partnership, corporation or other legal entity admitted 
to membership in FINRA under Articles III and IV of the FINRA By-
Laws. Article III, Sec. 1(a) of the FINRA By-Laws generally limits 
membership to registered brokers, dealers, municipal securities 
brokers or dealers, or government securities brokers or dealers. The 
Exchange's equivalent term is ``member organization.'' See Rule 
2(b)(i)--Equities (defining ``member organization'' as a registered 
broker or dealer (unless exempt pursuant to the Act) that is a 
member of FINRA or another registered securities exchange). Under 
NYSE Rule 2(a)--Equities, the term ``member'' means a natural person 
associated with a member organization who has been approved by the 
Exchange and designated by such member organization to effect 
transactions on the floor of the Exchange or any facility thereof.
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2. Statutory Basis
    The Exchange believes that the proposed rule changes are consistent 
with Section 6(b) of the Act,\26\ in general, and Section 6(b)(5) of 
the Act,\27\ in particular, because the proposed rule changes would be 
consistent with and facilitate 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. 
The Exchange believes that the proposed rule changes support 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. In particular, 
adopting proposed Rule 2040--Equities and amending Rule 8311 based on 
FINRA Rules 2040 and 8311 would promote just and equitable principles 
of trade by providing greater harmonization between NYSE MKT Rules and 
FINRA Rules of similar purpose, resulting in less burdensome and more 
efficient regulatory compliance.
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    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(1).
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    Similarly, deleting Rule 351(f)--Equities and Supplementary 
Material .11 and .12 as inconsistent with FINRA Rule 2241 would 
eliminate inconsistent annual attestation requirements, resulting in 
less burdensome and more efficient regulatory compliance and promoting 
just and equitable principles of trade. The Exchange further believes 
that eliminating the annual attestation requirement would not be 
inconsistent with the Exchange's obligations under the Exchange Act to 
prevent fraudulent or manipulative acts and practices because Exchange 
member organizations are subject to the same supervisory requirements 
as FINRA member firms, including an annual certification requirement 
regarding compliance and supervisory processes set forth in Rule 3130--
Equities. To the extent the Exchange has proposed changes that differ 
from the FINRA version of the Exchange rules, such changes are 
generally technical in nature and do not change the substance of the 
proposed rules. The Exchange also believes that the proposed conforming 
changes will update and add specificity to the Exchange's rules, which 
will promote just and equitable principles of trade and help to protect 
investors.

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

    In accordance with Section 6(b)(8) of the Act,\28\ the Exchange 
does not believe that the proposed rule changes will impose any burden 
on competition that is not necessary or appropriate in furtherance of 
the purposes of the Act. The proposed rule changes are not intended to 
address competitive issues but rather to achieve greater transparency 
and consistency between the Exchange's rules and FINRA's requirements 
concerning payments to unregistered persons, the effect of suspensions, 
revocations, cancellations, bars or other disqualifications, and 
research analyst annual attestation requirements.
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    \28\ 15 U.S.C. 78f(b)(8).
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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 \29\ and Rule 19b-4(f)(6) thereunder.\30\ 
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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    \29\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \30\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \31\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\32\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest.
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    \31\ 17 CFR 240.19b-4(f)(6).
    \32\ 17 CFR 240.19b-4(f)(6)(iii).
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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) \33\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \33\ 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-NYSEMKT-2016-90 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2016-90. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent

[[Page 78884]]

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; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEMKT-2016-90 and should be submitted on or before 
November 30, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-27024 Filed 11-8-16; 8:45 am]
BILLING CODE 8011-01-P