[Federal Register Volume 82, Number 182 (Thursday, September 21, 2017)]
[Notices]
[Pages 44229-44232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20101]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-81640; File No. SR-NYSE-2017-30]


Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change, as Modified by Amendment No. 2, To Amend Section 
102.01B of the NYSE Listed Company Manual To Provide for the Listing of 
Companies That List Without a Prior Exchange Act Registration and That 
Are Not Listing in Connection With an Underwritten Initial Public 
Offering and Related Changes to Rules 15, 104, and 123D

September 15, 2017.

I. Introduction

    On June 13, 2017, New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC''), pursuant to Section 19(b)(1) \1\ of the 
Securities Exchange Act of 1934 (the ``Exchange Act'') \2\ and Rule 
19b-4 thereunder,\3\ a proposed rule change to amend (i) Footnote (E) 
to Section 102.01B of the NYSE Listed Company Manual (the ``Manual'') 
to modify the provisions relating to the qualification of companies 
listing without a prior Exchange Act registration; (ii) Rule 15 to add 
a Reference Price for when a security is listed under Footnote (E) to 
Section 102.01B; (iii) Rule 104 to specify DMM requirements when a 
security is listed under Footnote (E) to Section 102.10B and there has 
been no trading in the private market for such security; and (iv) Rule 
123D to specify that the Exchange may declare a regulatory halt in a 
security that is the subject of an initial listing on the Exchange.
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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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    The proposed rule change was published for comment in the Federal 
Register on June 20, 2017.\4\ The Exchange filed Amendment No. 1 to the 
proposed rule change on July 28, 2017 which, as noted below, was later 
withdrawn. On August 3, 2017, the Commission extended the time period 
within which to approve the proposed rule change, disapprove the 
proposed rule change, or institute proceedings to determine whether to 
approve or disapprove the proposed rule change, to September 18, 
2017.\5\ On August 16, 2017, the Exchange withdrew Amendment No. 1 and 
filed Amendment No. 2 to the proposed rule change, which amended and 
replaced the proposed rule change as originally filed.\6\ Amendment No. 
2 was published for comment in the Federal Register on August 24, 
2017.\7\ The Commission received one comment on the proposal.\8\ This 
order institutes proceedings under Section 19(b)(2)(B) of the Exchange 
Act to determine whether to approve or disapprove the proposal.
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    \4\ See Securities Exchange Act Release No. 80933 (June 15, 
2017), 82 FR 28200 (June 20, 2017).
    \5\ See Securities Exchange Act Release No. 81309 (August 3, 
2017), 82 FR 37244 (August 9, 2017).
    \6\ See Notice, infra note 7, at n. 8, which describes the 
changes proposed in Amendment No. 2 from the original proposal. 
Amendment No. 2 replaced the original proposal in its entirety so 
the description below describes the proposal, as modified by 
Amendment No. 2.
    \7\ See Securities Exchange Act Release No. 81440 (August 18, 
2017), 82 FR 40183 (August 24, 2017) (``Notice'').
    \8\ See Letter from James J. Angel, Associate Professor of 
Finance, Georgetown University, to SEC (July 28, 2017).
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II. Description of the Amended Proposal

1. Listing Standards

    Generally, Section 102 of the Manual sets forth the minimum 
numerical standards for domestic companies, or foreign private issuers 
that choose to follow the domestic standards, to list equity securities 
on the Exchange. Section 102.01B of the Manual requires a listed 
company to demonstrate at the time of listing an aggregate market value 
of publicly-held shares of either $40 million or $100 million, 
depending on the type of listing.\9\ Section 102.01B also states that, 
in these cases, the Exchange relies on written representations from the 
underwriter, investment banker or other financial advisor, as 
applicable, with respect to this valuation.\10\ While Footnote (E) to 
Section 102.01B states that the Exchange generally expects to list 
companies in connection with a firm commitment underwritten initial 
public offering (``IPO''), upon transfer from another market, or 
pursuant to a spin-off, Section 102.01B of the Manual also contemplates 
that companies that have not previously had their common equity 
securities registered under the Exchange Act, but which have sold 
common equity securities in a private placement, may wish to list their 
common equity securities on the Exchange at the time of effectiveness 
of a registration statement \11\ filed solely for the purpose of 
allowing existing shareholders to sell their shares.\12\ Specifically, 
Footnote (E) to Section 102.01B of the Manual permits the Exchange, on 
a case by case basis, to exercise discretion to list such companies and 
provides that the Exchange will determine that such a company has met 
the $100 million aggregate market value of publicly-held shares 
requirement based on a combination of both (i) an independent third-
party valuation (a ``Valuation'') \13\ of the company and (ii) the most 
recent trading price for the company's common stock in a trading system 
for unregistered securities operated by a national securities exchange 
or a registered broker-dealer (a ``Private Placement Market'').\14\ 
Under the

[[Page 44230]]

current rules, the Exchange will attribute a market value of publicly-
held shares to the company equal to the lesser of (i) the value 
calculable based on the Valuation and (ii) the value calculable based 
on the most recent trading price in a Private Placement Market.
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    \9\ Section 102.01B of the Manual states that a company must 
demonstrate ``. . . an aggregate market value of publicly-held 
shares of $40 million for companies that list either at the time of 
their IPO (C) or as a result of a spin-off or under the Affiliated 
Company standard or, for companies that list at the time of their 
Initial Firm Commitment Underwritten Public Offering (C), and 
$100,000,000 for other companies (D)(E).'' Section 102.01B also 
requires a company to have a closing price, or if listing in 
connection with an IPO or Initial Firm Commitment Underwritten 
Public Offering, a price per share of at least $4.00 at the time of 
initial listing.
    \10\ See Section 102.01B, Footnote (C) of the Manual which 
states that for companies listing at the time of their IPO or 
Initial Firm Commitment Underwritten Public Offering, the Exchange 
will rely on a written commitment from the underwriter to represent 
the anticipated value of the company's offering. For spin-offs, the 
Exchange will rely on a representation from the parent company's 
investment banker (or other financial advisor) in order to estimate 
the market value based upon the distribution ratio.
    \11\ The reference to a registration statement refers to a 
registration statement effective under the Securities Act of 1933 
(``Securities Act'').
    \12\ See Section 102.01B, Footnote (E) of the Manual.
    \13\ See Section 102.01B, Footnote (E) of the Manual which sets 
forth specific requirements for the Valuation. Among other factors, 
any Valuation used for purposes of Footnote (E) must be provided by 
an entity that has significant experience and demonstrable 
competence in the provision of such valuations.
    \14\ Section 102.01B, Footnote (E) also sets forth specific 
factors for relying on a Private Placement Market Price including 
that such price must be a consistent with a sustained history of 
trading over several months prior to listing.
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    The Exchange has proposed three changes to Footnote (E) to Section 
102.01B of the Manual. First, the Exchange has proposed to amend such 
Footnote to explicitly permit the Exchange, on a case by case basis, to 
exercise its discretion to list companies whose stock is not previously 
registered under the Exchange Act upon effectiveness of only an 
Exchange Act registration statement, without any concurrent IPO or 
Securities Act registration, provided the company meets all other 
listing requirements. The Exchange noted that a company is able to 
become an Exchange Act registrant without a concurrent public offering 
by filing a Form 10 (or, in the case of a foreign private issuer, a 
Form 20-F) with the Commission, and expressed its belief that it is 
appropriate to list such companies immediately upon effectiveness of an 
Exchange Act registration statement without a concurrent Securities Act 
registration statement provided the company meets all other listing 
requirements.\15\ In articulating the statutory basis for its proposal, 
the Exchange stated that permitting companies to list upon 
effectiveness of an Exchange Act registration statement without a 
concurrent public offering or Securities Act registration is designed 
to protect investors and the public interest because such companies 
will be required to meet all of the same quantitative requirements met 
by other listing companies.\16\
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    \15\ See Notice supra note 7 at 40184.
    \16\ Id. at 40186.
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    Second, the Exchange has proposed to amend Footnote (E) to provide 
that, in the absence of any recent trading in a Private Placement 
Market, the Exchange will determine that a company has met its market 
value of publicly-held shares requirement if the company provides a 
recent Valuation evidencing a market value of publicly-held shares of 
at least $250 million. In proposing this change, the Exchange expressed 
the view that the current requirement of Footnote (E) to rely on recent 
Private Placement Market trading in addition to a Valuation may cause 
difficulties for certain companies that are otherwise clearly qualified 
for listing.\17\ The Exchange stated that some companies that are 
clearly large enough to be suitable for listing on the Exchange do not 
have their securities traded at all on a Private Placement Market prior 
to going public and, in other cases, the Private Placement Market 
trading is too limited to provide a reasonable basis for reaching 
conclusions about a company's qualification.\18\ In proposing to adopt 
a Valuation that must be at least two-and-a-half times the $100 million 
requirement of Section 102.01B of the Manual, the Exchange stated that 
this amount ``will give a significant degree of comfort that the market 
value of the company's shares will meet the [$100 million] standard 
upon commencement of trading on the Exchange,'' particularly because 
any such valuation ``must be provided by an entity that has significant 
experience and demonstrable competence in the provision of such 
valuations.'' \19\
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    \17\ Id. at 40184.
    \18\ Id.
    \19\ Id. In its proposal, the Exchange stated that it believed 
that it is unlikely that any Valuation would reach a conclusion that 
was incorrect to the degree necessary for a company using this 
provision to fail to meet the $100 million requirement upon listing, 
in particular because any Valuation used for this purpose must be 
provided by an entity that has significant experience and 
demonstrable competence in the provision of such valuations.
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    Lastly, the Exchange proposed to further amend Footnote (E) by 
establishing certain criteria that would preclude a valuation agent 
from being considered ``independent'' for purposes of Footnote (E), 
which the Exchange believes will provide a significant additional 
guarantee of the independence of any entity providing such a Valuation. 
Specifically, the Exchange proposed that a valuation agent will not be 
deemed to be independent if:
     At the time it provides such valuation, the valuation 
agent or any affiliated person or persons beneficially own in the 
aggregate as of the date of the valuation, more than 5% of the class of 
securities to be listed, including any right to receive any such 
securities exercisable within 60 days.
     The valuation agent or any affiliated entity has provided 
any investment banking services to the listing applicant within the 12 
months preceding the date of the valuation.\20\
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    \20\ For purposes of this provision, ``investment banking 
services'' includes, without limitation, acting as an underwriter in 
an offering for the issuer; acting as a financial adviser in a 
merger or acquisition; providing venture capital, equity lines of 
credit, PIPEs (private investment, public equity transactions), or 
similar investments; serving as placement agent for the issuer; or 
acting as a member of a selling group in a securities underwriting.
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     The valuation agent or any affiliated entity has been 
engaged to provide investment banking services to the listing applicant 
in connection with the proposed listing or any related financings or 
other related transactions.

2. Trading Rules

    The Exchange also proposed to amend Exchange Rules 15, 104 and 
123D, governing the opening of trading, to specify procedures for the 
opening trade on the day of initial listing of a company that lists 
under the proposed amendments to Footnote (E) to Section 102.01B of the 
Manual, and did not have any recent trading in a Private Placement 
Market.
    Rule 15(b) provides that a designated market maker (``DMM'') will 
publish a pre-opening indication before a security opens if the opening 
transaction on the Exchange is anticipated to be at a price that 
represents a change of more than the ``Applicable Price Range,'' as 
specified in Rule 15(d), from a specified ``Reference Price,'' as 
specified in Rule 15(c).\21\ Rule 15(c)(1) specifies the Reference 
Price for a security other than an American Depository Receipt, which 
would be either (A) the security's last reported sale price on the 
Exchange; (B) the security's offering price in the case of an IPO; or 
(C) the security's last reported sale price on the securities market 
from which the security is being transferred to the Exchange, on the 
security's first day of trading on the Exchange.
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    \21\ Rule 15(b) also provides that a DMM will publish a pre-
opening indication before a security opens if a security has not 
opened by 10:00 a.m. Eastern Time.
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    The Exchange proposed to amend Rule 15(c)(1) to add new sub-
paragraph (D) to specify the Reference Price for a security that is 
listed under Footnote (E) to Section 102.01B of the Manual. The 
Exchange proposed that if such security has had recent sustained 
trading in a Private Placement Market prior to listing the Reference 
Price in such scenario would be the most recent transaction price in 
that market or, if not, the Reference Price used would be a price 
determined by the Exchange in consultation with a financial advisor to 
the issuer of such security.
    Rule 104(a)(2) provides that the DMM has a responsibility for 
facilitating openings and reopenings for each of the securities in 
which the DMM is registered as required under Exchange rules, which 
includes supplying liquidity as needed. The Exchange proposed to amend 
Rule 104(a)(2) to require the DMM to consult with the issuer's 
financial advisor when

[[Page 44231]]

facilitating the opening on the first day of trading of a security that 
is listing under Footnote (E) to Section 102.01B of the Manual and that 
has not had recent sustained history of trading in a Private Placement 
Market prior to listing, in order to effect a fair and orderly opening 
of such security.\22\
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    \22\ The Exchange stated that this requirement is based in part 
on Nasdaq Rule 4120(c)(9), which requires that a new listing on 
Nasdaq that is not an IPO have a financial advisor willing to 
perform the functions performed by an underwriter in connection with 
pricing an IPO on Nasdaq.
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    The Exchange stated that it believes that such a financial advisor 
would have an understanding of the status of ownership of outstanding 
shares in the company and would have been working with the issuer to 
identify a market for the securities upon listing.\23\ As a result, it 
believes such financial advisor would be able to provide input to the 
DMM regarding expectations of where such a new listing should be 
priced, based on pre-listing selling and buying interest and other 
factors that would not be available to the DMM through other 
sources.\24\
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    \23\ See Notice supra note 7 at 40185.
    \24\ Id. The Exchange noted that despite the proposed obligation 
to consult with the financial advisor, the DMM would remain 
responsible for facilitating the opening of trading of such 
security, and the opening of such security must take into 
consideration the buy and sell orders available on the Exchange's 
book. Id. Accordingly, the Exchange stated that just as a DMM is not 
bound by an offering price in an IPO, and will open such a security 
at a price dictated by the buying and selling interest entered on 
the Exchange in that security, a DMM would not be bound by the input 
he or she receives from the financial advisor. Id. at 40185-86.
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    In its proposal, the Exchange stated that the proposed amendments 
to both Rule 15 and Rule 104 are designed to provide DMMs with 
information to assist them in meeting their obligations to open a new 
listing under the proposed amended text of Footnote (E) to Section 
102.01B of the Manual.\25\
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    \25\ Id. at 40186.
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    The Exchange further proposed to amend its rules to provide 
authority to declare a regulatory halt for a non-IPO new listing. As 
proposed, Rule 123D(d) would provide that the Exchange may declare a 
regulatory halt in a security that is the subject of an initial pricing 
on the Exchange that has not been listed on a national securities 
exchange or traded in the over-the-counter market pursuant to FINRA 
Form 211 (``OTC market'') immediately prior to the initial pricing.\26\ 
In addition, proposed Rule 123D(d) would provide that this regulatory 
halt would be terminated when the DMM opens the security.\27\ The 
Exchange stated its belief that it would be consistent with the 
protection of investors and the public interest for the Exchange, as a 
primary listing exchange, to have the authority to declare a regulatory 
halt for a security that is the subject of a non-IPO listing because it 
would ensure that a new listing that is not the subject of an IPO could 
not be traded before the security opens on the Exchange.\28\
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    \26\ Id.
    \27\ The Exchange stated that proposed Rule 123D(d) is based in 
part on (i) Nasdaq Rule 4120(c)(9), which provides that the process 
for halting and initial pricing of a security that is the subject of 
an IPO on Nasdaq is also available for the initial pricing of any 
other security that has not been listed on a national securities 
exchange or traded in the OTC market immediately prior to the 
initial public offering, provided that a broker-dealer serving in 
the role of financial advisor to the issuer of the securities being 
listed is willing to perform the functions under Rule 4120(c)(7)(B) 
that are performed by an underwriter with respect to an initial 
public offering and (ii) Nasdaq Rule 4120(c)(8)(A), which provides 
that such halt condition shall be terminated when the security is 
released for trading on Nasdaq.
    \28\ Id.
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III. Summary of Comment Letter Received

    The Commission received one comment letter on the proposal urging 
the Commission to approve the proposal promptly and without further 
delay.\29\ The commenter stated the belief that there is no public 
interest served in excluding the listing of a large company with many 
investors that does not need to raise additional capital through an 
IPO.\30\ The commenter further stated that in determining whether a 
company is large enough to meet the listing standards, if a company 
were to trade at a market capitalization far below the thresholds, it 
would harm the Exchange's reputation not the investing public.\31\ The 
commenter further discussed concerns about how the NYSE will open the 
market for a security under the proposal when there is no reliable 
previous price or offering price.\32\ The commenter stated that if NYSE 
gets the ``offering price `wrong,' secondary market trading will 
quickly find the market price at which supply equals demand within a 
few minutes if not a few seconds.'' \33\
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    \29\ See supra note 8.
    \30\ Id. at 2.
    \31\ Id. at 3.
    \32\ Id.
    \33\ Id.
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IV. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2017-30 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Exchange Act \34\ to determine whether the proposal 
should be approved or disapproved. Institution of such proceedings is 
appropriate at this time in view of the legal and policy issues raised 
by the proposal, as discussed below. Institution of disapproval 
proceedings does not indicate that the Commission has reached any 
conclusions with respect to any of the issues involved.
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    \34\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission 
is providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis and input concerning the proposed rule change's consistency 
with the Exchange Act.\35\ In particular, the Commission is instituting 
proceedings to allow for additional analysis of the proposed rule 
change's consistency with Section 6(b)(5) of the Act which requires, 
among other things, that the rules of a national securities exchange be 
designed to promote just and equitable principles of trade, 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.\36\
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    \35\ 15 U.S.C. 78f(b)(5).
    \36\ Id.
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    The Commission notes that NYSE has proposed to adopt listing 
standards that would permit broadly, for the first time, the listing on 
the Exchange of a company immediately upon effectiveness of an Exchange 
Act registration statement for the purpose of creating a liquid trading 
market without any concurrent Securities Act registration. NYSE states 
that its proposal to list such companies is designed to protect 
investors and the public interest, consistent with Section 6(b)(5) of 
the Act, because such companies will be required to meet all of the 
same quantitative requirements that are met by other listing 
applicants.
    The Commission notes, however, that a direct listing of this sort 
based only on an Exchange Act registration without prior trading and 
Securities Act registration may raise a number of unique 
considerations, including with respect to the role of various 
distribution participants, the extent and nature of pricing information 
available to market participants prior to the commencement of trading, 
and the availability of information indicative of the number of shares 
that are likely to be made available for sale at the commencement of 
trading.

[[Page 44232]]

V. Commission's Solicitation of Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5), or any other provision of the Exchange 
Act, or the rules and regulations thereunder. Although there do not 
appear to be any issues relevant to approval or disapproval that would 
be facilitated by an oral presentation of views, data, and arguments, 
the Commission will consider, pursuant to Rule 19b-4, any request for 
an opportunity to make an oral presentation.\37\
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    \37\ Section 19(b)(2) of the Exchange Act, as amended by the 
Securities Act Amendments of 1975, Public Law 94-29 (June 4, 1975), 
grants the Commission flexibility to determine what type of 
proceeding--either oral or notice and opportunity for written 
comments--is appropriate for consideration of a particular proposal 
by a self-regulatory organization. See Securities Act Amendments of 
1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 
75, 94th Cong., 1st Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by October 12, 2017. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
October 26, 2017. The Commission asks that commenters address the 
sufficiency of the Exchange's statements in support of the proposal 
which are set forth in the Notice, in addition to any other comments 
they may wish to submit about the proposed rule change. In particular, 
the Commission seeks comment, including, where relevant, any specific 
data, statistics, or studies, on the following:
    1. Would a direct listing based only on an Exchange Act 
registration without prior trading and Securities Act registration 
present unique considerations, including with respect to the role of 
various distribution participants, the extent and nature of pricing 
information available to market participants prior to the commencement 
of trading, and the availability of information indicative of the 
number of shares that are likely to be made available for sale at the 
commencement of trading? Would these considerations raise any concerns, 
including with respect to promoting just and equitable principles of 
trade, removing impediments to and perfecting the mechanism of a free 
and open market and a national market system, and, in general, 
protecting investors and the public interest? If so, please identify 
those risks and explain their significance.
    2. To what extent would a direct listing impact the ability of the 
DMM to facilitate the opening (or otherwise fulfill its obligations as 
a DMM) on the first day of trading of a security listed only with an 
Exchange Act registration? To the extent there would be an impact, 
please identify it and explain its significance. To what extent would 
any such impact be mitigated by the proposed requirement that the DMM 
consult with a financial adviser to the issuer in order to effect a 
fair and orderly opening of the security?
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-NYSE-2017-30 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 Numbers SR-NYSE-2017-30. 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 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 these filings 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-NYSE-2017-30 and should be 
submitted on or before October 12, 2017. Rebuttal comments should be 
submitted by October 26, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(57).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-20101 Filed 9-20-17; 8:45 am]
 BILLING CODE 8011-01-P