[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Notices]
[Pages 84439-84443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28510]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90722; File No. SR-NYSEAMER-2020-86]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change to Shorten 
the Time Period Before a Letter of Acceptance, Waiver, and Consent 
Under Rule 9216 and an Uncontested Offer of Settlement Under Rule 
9270(f) Becomes Final

December 18, 2020
    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 December 17, 2020, NYSE American LLC (``NYSE American'' 
or the ``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to shorten the time period before a letter of 
acceptance, waiver, and consent under Rule 9216 and an uncontested 
offer of settlement under Rule 9270(f) becomes final and the 
corresponding time period to request review of these settlements under 
Rule 9310 from 25 days to 10 days. The Exchange also proposes to define 
``affiliate'' in Rules 9268 and 9310 by reference to the definition in 
the Act, thereby harmonizing its rules with those of its affiliates. 
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

[[Page 84440]]

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 shorten the time period before a letter of 
acceptance, waiver, and consent (``AWC'') under Rule 9216 and an 
uncontested offer of settlement under Rule 9270(f) becomes final and 
the corresponding time period to request review of these settlements 
under Rule 9310 from 25 days to 10 days. The Exchange also proposes to 
define ``affiliate'' in Rules 9268 and 9310 by reference to the 
definition in the Act, thereby harmonizing its rules with those of its 
affiliates.
    In 2016, NYSE American adopted disciplinary rules that are, with 
certain exceptions, substantially the same as the FINRA Rule 8000 
Series and Rule 9000 Series, and which set forth rules for conducting 
investigations and enforcement actions.\4\ The NYSE American 
disciplinary rules were implemented on April 15, 2016.\5\
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    \4\ See Securities Exchange Act Release No. 77241 (February 26, 
2016), 81 FR 11311 (March 3, 2016) (SR-NYSEMKT-2016-30) 
(``Notice'').
    \5\ See Information Memorandum 16-02 (March 14, 2016).
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    In adopting disciplinary rules modeled on FINRA's rules, the 
Exchange established processes for settling disciplinary matters both 
before and after issuance of a complaint.\6\ As adopted, Rules 9216, 
9270 and 9310 permit a Director and any member of the Committee for 
Review (``CFR'') to require a review by the Board of any AWC letter 
under Rule 9216 and any offer of settlement under Rule 9270 within 25 
days after the AWC letter or offer of settlement was sent to each 
Director and each member of the CFR.
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    \6\ See Notice, 81 FR at 11324-28.
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Proposed Rule Change
Time Period for Certain Settlements Under Rules 9216 and 9270(f)
    Rule 9216 (Acceptance, Waiver, and Consent; Procedure for 
Imposition of Fines for Minor Violation(s) of Rules) establishes AWC 
procedures by which a member organization or covered person, prior to 
the issuance of a complaint, may execute a letter accepting a finding 
of violation, consenting to the imposition of sanctions, and agreeing 
to waive such member organization's or covered person's right to a 
hearing, appeal and certain other procedures. The rule also establishes 
procedures for executing a minor rule violation plan letter.
    Under Rule 9216(a)(4), an AWC accepted by the Chief Regulatory 
Officer (``CRO'') must be sent to each Director and each member of the 
CFR and would be deemed final and constitute the complaint, answer, and 
decision in the matter 25 days after being sent to each Director and 
each member of the CFR, unless review by the Exchange Board of 
Directors is requested pursuant to Rule 9310(a)(1)(B).\7\
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    \7\ Requests for review of an AWC accepted by the CRO are 
governed by Rule 9310(a)(1)(B)(i). For the sake of clarity and 
transparency, the Exchange proposes the non-substantive change of 
including the omitted reference to subsection (B)(i) of Rule 
9310(a)(1) in both in the current and proposed text of Rule 
9216(a)(4).
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    The Exchange proposes that an AWC accepted by the CRO would be 
deemed final and constitute the complaint, answer, and decision in a 
matter 10 days after being sent to each Director and each member of the 
CFR, unless review is requested pursuant to Rule 9310(a)(1)(B)(i). As 
described below, the time period to request review under Rule 
9310(a)(1)(B)(i) would also be shortened to 10 days.
    Rule 9270 (Settlement Procedure) provides a settlement procedure 
for a Respondent who has been notified of the initiation of a 
proceeding. Specifically, Rule 9270(f) provides that uncontested 
settlement offers accepted by the CRO, the Hearing Panel or, if 
applicable, Extended Hearing Panel must be issued and sent to each 
Director and each member of the CFR and becomes final 25 days after 
being sent to each Director and each member of the CFR, unless review 
by the Exchange Board of Directors is requested pursuant to Rule 
9310(a)(1).
    The Exchange proposes that uncontested settlement offers accepted 
by the CRO, the Hearing Panel or, if applicable, Extended Hearing Panel 
(together, a ``Panel'') under Rule 9270(f) would become final 10 days 
after being sent to each Director and each member of the CFR, unless 
review by the Exchange Board of Directors is requested pursuant to Rule 
9310(a)(1). As noted, the time to request review of an uncontested 
settlement under Rule 9310(a)(1) would also be shortened to 10 days.
    Finally, under Rule 9310(a)(1)(B)(i), any Director and any member 
of the CFR may require a review by the Board of any determination or 
penalty, or both, imposed in connection with an AWC letter under Rule 
9216 or an offer of settlement determined to be uncontested before a 
hearing on the merits has begun under Rule 9270(f), except that none of 
those persons could request Board review of a determination or penalty 
concerning an affiliate of the Exchange.\8\ A request for review under 
this provision is made by filing with the Secretary of the Exchange a 
written request stating the basis and reasons for such review, within 
25 days after an AWC letter or an offer of settlement has been sent to 
each Director and each member of the CFR pursuant to Rule 9216(a)(4) or 
Rule 9270(f)(3).
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    \8\ As discussed below, the Exchange proposes to amend Rule 9310 
and Rule 9268 to incorporate the definition of ``affiliate'' from 
Rule 12b-2 under the Act, thereby harmonizing those rules with those 
of its affiliates.
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    To permit AWC letters and uncontested settlements to become final 
within 10 days as proposed, the Exchange would amend Rule 
9310(a)(1)(B)(i) to provide that a request for review of these 
settlements as permitted by the rule must be made by filing the 
requisite written request with the Secretary of the Exchange within 10 
days after the AWC letter or an offer of settlement is sent to each 
Director and each member of the CFR pursuant to Rule 9216(a)(4) or Rule 
9270(f)(3).\9\
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    \9\ The time period for requesting review pursuant to Rule 
9310(a)(1)(B)(ii) of any rejection by the CRO of any AWC letter 
under Rule 9216 or of an uncontested offer of settlement under Rule 
9270(f), would remain unchanged as would the time period to request 
for review of any determination or penalty, or both, imposed by a 
Panel under the Rule 9310(a)(1)(A) other than an offer of settlement 
determined to be uncontested after a hearing on the merits have 
begun under Rule 9270(f). For the avoidance of doubt, the Exchange 
would add text to Rule 9310(a)(1)(A) providing that any request for 
review of an offer of settlement determined to be uncontested after 
a hearing on the merits has begun under Rule 9270(f) that has been 
accepted by a Panel shall be governed by Rule 9310((a)(1)(B)(i).
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    The Exchange believes maintaining a 25 day waiting period for 
negotiated settlements under Rule 9216 and uncontested settlements 
pursuant to 9270(f) unnecessarily delays final resolution of matters 
that have been resolved by the parties and accepted by the CRO or a 
Panel. Shortening the waiting period to 10 days, and requiring requests 
for Board of Directors review to be made within that same 10 day 
period, would significantly expedite the settlement process in 
situations where member organizations, covered persons and Respondents 
have entered into a consensual, negotiated settlement with Enforcement 
or made settlement offers that Enforcement does not oppose, while 
continuing to ensure the independence and integrity of the regulatory 
process by preserving the ability of Directors and CFR members to call 
those settlements for review.

[[Page 84441]]

    Further, the Exchange believes that the proposed 10 day period to 
call a settlement for review under Rule 9310(a)(1)(B)(i) is reasonable 
and sufficient. Like the current 25 day period, the time to call a 
settlement for review would begin when the AWC or uncontested 
settlement is sent to each Director and member of the CFR. Rules 9216 
and 9270 specify that an AWC or uncontested settlement accepted by the 
CRO or a Panel can be sent to each Director and each CFR member via 
courier, express delivery or electronic means. As a practical matter, 
AWCs and settlements are sent to the Directors and CFR members by 
email, which ensures prompt and instantaneous communication. As a 
result, the Directors and members of the CFR will have the full 10 day 
period to determine whether to call these settlements for review. 
Moreover, the requirement in Rule 9310(a)(1)(B)(i) that a request for 
review be in writing and state the basis and reasons for such review 
can similarly be satisfied by a Director or CFR member sending an email 
to the Secretary of the Exchange requesting that a specific matter be 
reviewed within the proposed 10 day period. The Director or CFR member 
would need to take no additional steps nor include any additional 
information in order to call a matter for review under Rule 
9310(a)(1)(B)(i). In light of these facts, and the relative infrequency 
of calls for review of AWCs and uncontested settlements,\10\ the 
Exchange believes that 10 days are more than sufficient for a Director 
or member of the CFR to determine whether to call a settlement for 
review. Once accepted by the CRO or Panel, the proposed 10 day period 
for negotiated settlements to be called for review or become final 
would expedite disciplinary proceedings and provide finality to the 
disciplinary process sooner, to the benefit of the parties and the 
investing public.
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    \10\ For example, no AWC letter or uncontested settlement has 
been called for review in the past year.
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    Finally, the Exchange also believes that shortening these time 
periods would further promote efficiency in connection with cross-
market settlements involving multiple self-regulatory organizations 
(``SROs''). Often such settlements are contingent upon the acceptance 
of a settlement by all of the SROs involved in the matter. In these 
situations, a settlement with the Exchange would not be final until the 
end of the time period specified in Rules 9216 and 9270 while a 
settlement with other SROs could be final once accepted.\11\ Thus by 
reducing the amount of time these settlements are outstanding at the 
Exchange, the proposed change could speed up the settlement process for 
cross-market settlements involving multiple SROs, to the benefit of the 
parties and the investing public.
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    \11\ See, e.g., FINRA Rule 9216(a)(4) (``If the [AWC] letter is 
accepted by the National Adjudicatory Council, the Review 
Subcommittee, or the Office of Disciplinary Affairs, it shall be 
deemed final and shall constitute the complaint, answer, and 
decision in the matter.''); FINRA Rule 9270(e)(3) (``If the offer of 
settlement and order of acceptance are accepted by the National 
Adjudicatory Council, the Review Subcommittee, or the Office of 
Disciplinary Affairs, they shall become final and the Director of 
the Office of Disciplinary Affairs shall issue the order and notify 
the Office of Hearing Officers. The Department of Enforcement shall 
provide a copy of an issued order of acceptance to each FINRA member 
with which a Respondent is associated.''). See also e.g., Nasdaq 
Rule 9216(a)(4) & 9270(e)(3); Cboe BZX Exchange, Inc. Rule 8.8(a); 
Cboe EDGA Exchange, Inc. Rule 8.8(a).
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    The Exchange intends to announce the operative date of the amended 
time periods in Rules 9216(a)(4), 9270(f)(3) and 9310(a)(1) at least 30 
days in advance via regulatory notice.\12\ To further facilitate an 
orderly transition from the current rules to the new rules, the 
Exchange proposes that matters already initiated under the current 
rules would be completed under such rules. Specifically, the Exchange 
proposes to apply the current 25 day period for AWCs prepared and 
submitted to a member organization or covered persons under Rule 
9216(a)(1) prior to the operative date and to uncontested settlement 
offers in proceedings where a Party was served with a complaint by 
Enforcement pursuant to Rule 9131 prior to the operative date. Rules 
9216(a)(4), 9270(f)(3) and 9310(a)(1)(B)(i) would be amended to reflect 
the transition process. When the transition is complete, the Exchange 
intends to submit a proposed rule change that would delete the 
unnecessary transition provisions of 9216(a)(4), 9270(f)(3) and 
9310(a)(1)(B)(i).
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    \12\ The effective date of the new time periods would be 
simultaneously communicated to the Directors and to the members of 
the CFR.
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Definition of ``Affiliate'' in Rules 9268 and 9310
    The Exchange proposes to harmonize Rules 9268 and 9310 with the 
versions adopted by the Exchange's affiliates. To effectuate this 
harmonization, the Exchange proposes to delete the phrase ``an Exchange 
member or member organization that is'' before ``an affiliate'' and add 
the phrase ``as such term is defined in Rule 12b-2 under the Exchange 
Act'' after ``an affiliate'' in Rule 9268(e)(2) and Rule 9310(a)(1)(A) 
& (a)(1)(B)(i)-(ii).\13\ The Exchange believes that utilizing the 
definition of affiliate set forth in in Rule 12b-2 under the Act would 
not diminish the current scope or application of either rule since the 
proposed definition of affiliate would continue to encompass members 
and member organizations. Finally, by harmonizing Rules 9268 and 9310 
with the version of those rules adopted by the Exchange's affiliates, 
the proposal would add clarity and transparency to the Exchange's rules 
and further ensure that final determinations involving Exchange 
affiliates as defined in Rule 12b-2 under the Act cannot be appealed to 
its Board of Directors.
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    \13\ See NYSE Rules 9268(e)(2) and 9310(a)(1)(A) & (a)(1)(B)(i)-
(ii); NYSE Arca, Inc. Rules 10.9268(e)(2) and 10.9310(a)(1)(A) & 
(a)(1)(B)(i)-(ii); and NYSE National, Inc. Rules 10.9268.e.2. and 
10.9310.a.1.A. & a.1.Bi.-ii. See also Securities Exchange Act 
Release No. 88613 (April 9, 2020), 85 FR 21035 (April 15, 2020) (SR-
NYSE-2020-33).
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\14\ in general, and furthers the objectives of Section 
6(b)(5),\15\ 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 consistent with the Section 6(b)(5) \16\ 
requirement that the rules of an exchange not be designed to permit 
unfair discrimination between customers, issuers, brokers, or dealers.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ Id.
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    Specifically, the Exchange believes that shortening the waiting 
period for negotiated settlements and uncontested offers of settlement 
would serve to expedite the final resolution of both Exchange and 
cross-market matters that have been resolved by the parties and 
accepted by the CRO or Panel, thereby protecting investors and the 
public interest by addressing rule violations and achieving finality in 
disciplinary matters sooner. The proposed rule change to shorten the 
waiting period before an AWC letter and offer of settlement becomes 
final and the member of CFR or Board's time to call such settlements 
for review will

[[Page 84442]]

therefore provide for a more efficient, streamlined disciplinary 
process.
    The Exchange further believes that the proposed amendments are 
consistent with Section 6(b)(6) of the Act,\17\ which provides that 
members and persons associated with members shall be appropriately 
disciplined for violation of the provisions of the rules of an exchange 
by expulsion, suspension, limitation of activities, functions, and 
operations, fine, censure, being suspended or barred from being 
associated with a member, or any other fitting sanction. As noted, the 
proposed changes will not affect the ability of Enforcement to enter 
into negotiated settlements or accepting uncontested settlement offers 
when appropriate, and will not alter the requirement that settlements 
be scrutinized by the CRO or Panel, who will continue to approve them, 
or the Directors and members of the CFR, whose right to call both types 
of voluntary settlements for review will not change.
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    \17\ 15 U.S.C. 78f(b)(6).
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    For the same reasons, the Exchange believes that the proposed 
changes are 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.\18\ Moreover, as noted, the 
Exchange believes that the proposed 10 day period to call a settlement 
for review under Rules 9310(a)(1)(B)(i) is reasonable and sufficient, 
and provides an appropriate balance between the procedural safeguards 
of the call for review process and the benefits of expediting the 
resolution of disciplinary matters and providing finality to the 
disciplinary process sooner. Reducing the period for review would also 
mean that AWCs and uncontested settlements would be published two weeks 
earlier, thereby allowing member organizations, covered persons and the 
investing public to be educated about the issues they addressed sooner. 
Finally, the Exchange believes that the proposed transition plan is 
designed to provide a fair procedure for the disciplining of member 
organizations and covered persons by providing for a clearly demarcated 
and orderly transition from the current 25 day period to the proposed 
10 day period.
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    \18\ 15 U.S.C. 78f(b)(7) and 78f(d).
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    Further, the Exchange believes that the non-substantive changes to 
clarify the cross-reference to Rule 9310 in Rules 9216 and amending 
Rules 9268 and 9310 to reference the Act's definition of ``affiliate'' 
would remove impediments to and perfect the mechanism of a free and 
open market and a national market system and, in general, protect 
investors and the public interest because the proposed non-substantive 
changes would add clarity, transparency and consistency to the 
Exchange's disciplinary rules. The Exchange believes that market 
participants would benefit from the increased clarity, thereby reducing 
potential confusion and ensuring that persons subject to the Exchange's 
jurisdiction, regulators, and the investing public can more easily 
navigate and understand the Exchange's rules. Similarly, the Exchange 
believes that the proposed amendments to Rules 9268 and 9270 would also 
make the Exchange's disciplinary rules more consistent with the rules 
of its affiliates, thereby ensuring that persons subject to the 
Exchange's jurisdiction, regulators, and the investing public can more 
easily navigate and understand the Exchange's rules.

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. The proposed rule change is 
not intended to address competitive issues but is rather concerned with 
facilitating less burdensome regulatory compliance and processes and 
enhancing the quality of the regulatory process. The Exchange believes 
the proposed rule changes would reduce the burdens within the 
disciplinary process, as well as move matters through the process 
expeditiously by providing for more efficient finality of negotiated 
settlements and offers of settlement, to the benefit of all member 
organizations, covered persons and the investing public.

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

    Because the foregoing 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 for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \19\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\20\
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    \19\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the 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 to 
determine whether the proposed rule should be approved or disapproved.

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-2020-86 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-2020-86. 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

[[Page 84443]]

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-2020-86, and should 
be submitted on or before January 19, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-28510 Filed 12-23-20; 8:45 am]
BILLING CODE 8011-01-P