[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Notices]
[Pages 35968-35972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11609]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97581; File No. SR-NYSEAMER-2023-29]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change To Amend Rule 
9232 and Rule 308-Equities

May 25, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on May 16, 2023, NYSE American LLC (``NYSE American'' or ``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\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 9232 and Rule 308-Equities to 
reflect the consolidation of the Acceptability Board with the Hearing 
Board as defined in Rule 9232(b) and make conforming changes. 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.

[[Page 35969]]

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 9232 (Criteria for Selection of 
Panelists, Replacement Panelists, and Floor-Based Panelists) and Rule 
308-Equities (Acceptability Proceedings) to reflect the consolidation 
of the Acceptability Board with the Hearing Board as defined in Rule 
9232(b) and make conforming changes.
Background
    Pursuant to Rule 308-Equities(c), Acceptability Committees are 
composed of at least three persons who are members of the Acceptability 
Board. Rule 308-Equities establishes procedures for Acceptability 
Committees to consider applications prior to disapproval by the 
Exchange
    (a) of prospective members or member organizations;
    (b) of any prospective member, principal executive, registered 
representative, or other person required by the Rules of the Exchange 
to be approved by the Exchange for employment or association with a 
member or member organization;
    (c) for any change in status of any person which change requires 
Exchange approval; and
    (d) of any prospective non-member broker/dealer accessee.
    Rule 308-Equities(c) provides that the Acceptability Board be 
appointed annually by, in part, the Chair of the Board of Directors 
(``Board'') subject to the approval of the Board, and that it be 
composed of such number of members and principal executives of the 
Exchange who are not members of the Board, and registered employees and 
non-registered employees of members and member organizations, as the 
Chair of the Board deems necessary.
    Rule 9232 establishes procedures for the selection and appointment 
of panelists to a Hearing Panel as defined in Rule 9120 (Definitions) 
to conduct disciplinary proceedings and issue a decision. Pursuant to 
Rule 9232(a), each panelist, except for the Hearing Officer, shall be a 
member of the Exchange hearing board (``Hearing Board'') provided for 
in Rule 9232(b). Rule 9232(b) states that the Board shall from time to 
time appoint a Hearing Board to be composed of such number of members 
of the Exchange who are not members of the Board and registered 
employees and nonregistered employees of member organizations or ATP 
Holders.\3\ Pursuant to Rule 9232(b), former members or registered and 
non-registered employees of member organizations or ATP Holders who 
have retired from the securities industry may be appointed to the 
Hearing Board. Rule 9232(b) further provides that the members of the 
Hearing Board be appointed annually.
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    \3\ ``ATP'' refers to an American Trading Permit issued by the 
Exchange for effecting approved securities transactions on the 
Exchange's options trading facilities. The term ``ATP Holder'' 
refers to a natural person, sole proprietorship, partnership, 
corporation, limited liability company or other organization, in 
good standing, that has been issued an ATP. See Rule 900.2NY 
(Definitions). See also Securities Exchange Act Release No. 77241 
(February 26, 2016), 81 FR 11311, n. 25 (March 3, 2016) (SR-NYSEMKT-
2016-30), (Notice of Filing and Immediate Effectiveness of Proposed 
Rule Change Adopting Investigation, Disciplinary, Sanction, and 
Other Procedural Rules Modeled on the Rules of the New York Stock 
Exchange LLC and Certain Conforming and Technical Changes) (noting 
that equities members do not have employees, but ATP Holders may be 
natural persons and may have employees).
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    All but one of the current members of the Acceptability Board are 
also members of the Hearing Board. Given the overlap in the composition 
of the Acceptability Board and the Hearing Board, and the fact that the 
Acceptability Board is appointed for no other purpose than providing a 
ready pool for staffing Acceptability Committees, the Exchange has 
determined to cease appointing a separate Acceptability Board. In this 
filing, the Exchange accordingly proposes to amend Rule 308-Equities to 
reflect the consolidation but retain the current composition of 
Acceptability Committees.
    Rule 9232(b) provides that the Hearing Board be appointed annually 
by the Board and serve at their pleasure. By contrast, Rule 308-
Equities(c) provides that the Acceptability Board be appointed annually 
by the Chair, or officer, employee or committee or board to whom 
appropriate authority has been delegated, subject to the approval of 
the Board, to serve at the pleasure of the Board. Despite the apparent 
difference, the Exchange believes that as a practical matter the 
proposed change is consistent with current practice, as the board to 
whom authority has been delegated pursuant to Rule 308-Equities(c) is 
the Board itself. As a result, the Board appoints both the Hearing 
Board and the Acceptability Board. Moreover, the Exchange believes that 
having the full Board make appointments is the more conservative option 
for appointing Hearing Board members, who serve at the pleasure of the 
Board.
Proposed Rule Change
    The composition of and criteria for appointment to both the 
Acceptability Board and the Hearing Board are substantially similar. 
Current Rule 308-Equities(c) provides that the Acceptability Board 
shall be composed of ``such number of members and principal executives 
of the Exchange who are not members of the Board of Directors, and 
registered employees and non-registered employees of members and member 
organizations, as the Chairman of the Board of the Exchange shall deem 
necessary.'' Rule 9232(b) provides that the Hearing Board shall be 
composed ``of such number of members of the Exchange who are not 
members of the Exchange Board of Directors and registered employees and 
nonregistered employees of member organizations or ATP Holders.'' Rule 
9232 further provides that former members or registered and non-
registered employees of member organizations or ATP Holders who have 
retired from the securities industry may be appointed to the Hearing 
Board.
Amendments to Rule 308-Equities(c) and (d)
    Rule 308-Equities(c) would be amended to provide that Acceptability 
Committees will consist of at least three persons that are members of 
the Hearing Board and that are also members and principal executives of 
the Exchange who are not Board members, or that are registered 
employees and non-registered employees of member organizations, as the 
Chair of the Board shall deem necessary. Amended Rule 308-Equities(c) 
would further clarify that the term Chief Hearing Officer is defined in 
Rule 9120(c).
    As proposed, the Exchange would consolidate the Acceptability Board 
and the Hearing Board but would only permit members and principal 
executives of the Exchange who are not members of the Board, or are 
registered employees and non-registered employees of member 
organizations, to be appointed to Acceptability Committees consistent 
with current Rule 308-Equities(c).\4\
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    \4\ The references to registered or non-registered employees of 
a member in the second paragraph of Rule 308-Equities(d) would be 
deleted. As noted, equities members do not have employees. See id. 
The Exchange would retain the references to registered or non-
registered employees of a member organization in that paragraph. 
Under the current rules, former members or registered and non-
registered employees of member organizations or ATP Holders who have 
retired from the securities industry may be appointed to the Hearing 
Board but may not be appointed to the Acceptability Board. In turn, 
they may not be appointed to Acceptability Committees. The proposed 
changes would exclude them from Acceptability Committees as well.

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[[Page 35970]]

    With the exception of the proposed changes described above, the 
substantive processes set forth in Rule 308-Equities for the 
appointment and composition of individual Acceptability Committees, 
including the requirement that Acceptability Committees consist of at 
least three persons meeting the criteria set forth in subdivision (d) 
of Rule 308-Equities selected by the Chief Hearing Officer,\5\ would 
remain unchanged.
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    \5\ Chief Hearing Officer is defined in Rule 9120(c). The Chief 
Hearing Officer is currently a Financial Industry Regulatory 
Authority, Inc. (``FINRA'') employee appointed by the Board to serve 
the functions specified in the Exchange's rules.
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    To effectuate these changes, the Exchange would replace 
``Acceptability Board'' with ``Hearing Board'' in Rule 308-Equities(c) 
and (d). In addition, the Exchange would update Rule 308-Equities(c) to 
add (c) after Rule 9120, to more clearly refer to the definition of 
Chief Hearing Officer in the Rule 9000 Series, the Exchange's current 
disciplinary rules. The second paragraph in current Rule 308-
Equities(c), which sets forth the appointment and composition 
requirements for the Acceptability Board, would be deleted. Proposed 
Rule 308-Equities(c) would read as follows (new text italicized, 
deleted text bracketed):
    (c) All proceedings under this rule shall be conducted in 
accordance with the provisions of this rule and shall be held before an 
Acceptability Committee consisting of at least three persons being 
members of the [Acceptability]Hearing Board described in Rule 9232(b) 
that are members and principal executives of the Exchange who are not 
members of the Board of Directors, or are registered employees and non-
registered employees of member organizations, as the Chair of the Board 
of the Exchange shall deem necessary, to be selected by the Chief 
Hearing Officer (as defined in Rule 9120(c)) in accordance with 
paragraph (d) of this rule.
    [The Chairman of the Board of the Exchange, or officer, employee or 
committee or board to whom appropriate authority has been delegated, 
subject to the approval of the Board of Directors, shall from time to 
time appoint an Acceptability Board to be composed of such number of 
members and principal executives of the Exchange who are not members of 
the Board of Directors, and registered employees and non-registered 
employees of members and member organizations, as the Chairman of the 
Board of the Exchange shall deem necessary. The members of the 
Acceptability Board shall be appointed annually and shall serve at the 
pleasure of the Board of Directors.]
    Finally, the references to the offices of a member and the 
references to employees of a member in Rule 308-Equities(d) would be 
deleted, as members of the Exchange's equity market do not have 
employees.\6\
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    \6\ See 81 FR 11311, supra note 3.
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Amendments to Rule 9232(a) and (b)
    In 2016, the Exchange adopted Rule 9232 as part of its adoption of 
rules relating to investigation, discipline, and sanctions, and other 
procedural rules based on the rules of FINRA and the New York Stock 
Exchange LLC (``NYSE'').\7\ Current Rule 9232(b) provides that the 
Hearing Board shall be ``composed of such number of members of the 
Exchange who are not members of the Exchange Board of Directors and 
registered employees and nonregistered employees of member 
organizations or ATP Holders.'' The Rule further provides that former 
members or registered and non-registered employees of member 
organizations or ATP Holders who have retired from the securities 
industry may be appointed to the Hearing Board.
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    \7\ See id., 11325-11326.
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    The Exchange has determined to update the Rule to include principal 
executives on the Hearing Board so long as they are not members of the 
Board, and permit principal executives who have retired from the 
securities industry to be appointed to the Hearing Board. The addition 
would be consistent with current and proposed Rule 308-Equities(c), 
which allow principal executives of the Exchange to serve on an 
Acceptability Committee.\8\
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    \8\ The proposed addition of ``principal executives'' is 
consistent with NYSE Rule 9232, as recently revised. See NYSE Rule 
9232(b) (Criteria for Selection of Panelists, Replacement Panelists, 
and Floor-Based Panelists), and Securities Exchange Act Release No. 
97206 (March 27, 2023), 88 FR 19334 (March 31, 2023) (SR-NYSE-2023-
19) (Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change to Amend Rule 308 as Defined in Rule 9232(b) and Delete and 
Replace Certain Obsolete References).
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    In addition, Hearing Board is currently lower case in Rule 9232(a) 
and (b). The Exchange proposes to capitalize the term.
    Proposed Rule 9232(a) and (b) would read as follows (new text 
italicized, deleted text bracketed):
    (a) Each Panelist shall be a person of integrity and judgment and, 
other than the Hearing Officer, shall be a member of the Exchange 
[h]Hearing [b]Board as provided in paragraph (b). At least one Panelist 
shall be engaged in securities activities differing from that of the 
Respondent or, if retired, was so engaged in differing activities at 
the time of retirement.
    (b) The Exchange Board of Directors shall from time to time appoint 
a [h]Hearing [b]Board to be composed of such number of members and 
principal executives of the Exchange who are not members of the 
Exchange Board of Directors and registered employees and nonregistered 
employees of member organizations or ATP Holders. Former members, 
principal executives, or registered and non-registered employees of 
member organizations or ATP Holders who have retired from the 
securities industry may be appointed to the [h]Hearing [b]Board. The 
members of the [h]Hearing [b]Board shall be appointed annually and 
shall serve at the pleasure of the Exchange Board of Directors.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\9\ in general, and furthers the 
objectives of Section 6(b)(1) \10\ in particular, in that it enables 
the Exchange to be so organized as to have the capacity to be able to 
carry out the purposes of the Act and to comply, and to enforce 
compliance by its exchange members and persons associated with its 
exchange members, with the provisions of the Act, the rules and 
regulations thereunder, and the rules of the Exchange. The Exchange 
also believes that the proposed rule change is consistent with Section 
6(b)(5) of the Act,\11\ in that 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. In addition, the Exchange believes that the proposed 
rule change is designed to provide fair procedures for the denial of 
membership to any person seeking Exchange membership, the barring of 
any person from becoming associated with a member, and the prohibition 
or limitation by the Exchange of any person with respect to access to 
services offered by the Exchange or a member thereof, consistent with 
the objectives of

[[Page 35971]]

Section 6(b)(7) \12\ and Section 6(d)(2) \13\ of the Act.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(1).
    \11\ 15 U.S.C. 78f(b)(5).
    \12\ 15 U.S.C. 78f(b)(7).
    \13\ 15 U.S.C. 78f(d)(2).
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    Amending Rule 308-Equities to reflect the consolidation of the 
Acceptability Board with the Hearing Board would continue to contribute 
to the orderly operation of the Exchange. As proposed, given the 
overlap in the membership of the two boards, the Exchange would appoint 
the same individuals to a single board that would be available to serve 
on both Hearing Panels for disciplinary actions (the Hearing Board's 
current function) and Acceptability Committees for acceptability 
hearings (the Acceptability Board's sole current function). The 
proposed change would streamline the process of appointing individuals 
to boards charged with specific functions under the Exchange's rules 
and eliminate duplication in the appointment of Exchange boards, which 
would enable the Exchange to continue to be so organized as to have the 
capacity to carry out the purposes of the Act and comply with the 
provisions of the Act by its members and persons associated with 
members, thereby furthering the objectives of Section 6(b)(1) \14\ of 
the Act.
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    \14\ 15 U.S.C. 78f(b)(1).
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    The Exchange further believes that the proposed change would be 
beneficial to both investors and the public interest, thereby promoting 
the maintenance of a fair and orderly market and the protection of 
investors and the public interest consistent with Section 6(b)(5) of 
the Act.\15\ The proposed changes would continue to permit the 
appointment of individuals that meet the same qualifications and 
requirements to consider applications prior to disapproval by the 
Exchange under current Rule 308-Equities.\16\ More specifically, the 
Exchange believes that there would be no material difference between 
the requirements for Acceptability Board composition under current Rule 
308-Equities(c) and proposed Rule 9232(b) insofar as both rules require 
that the applicable body be composed of (1) members and principal 
executives of the Exchange who are not members of the Board, and (2) 
registered employees and non-registered employees of member 
organizations or, in the case of Rule 9232, ATP Holders.\17\ Proposed 
Rule 308-Equities(c) makes it clear that the proposed Acceptability 
Committee can only include members and principal executives of the 
Exchange who are members of the Board of Directors, or that are 
registered employees and non-registered employees of member 
organizations. Both rules also require that the board be appointed 
annually and serve at the pleasure of the Board, so there will be no 
change in the frequency of appointment.
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    \15\ 15 U.S.C. 78f(b)(5).
    \16\ As discussed, the proposed change would not include 
employees of members. This is not a substantive change, because 
equities members do not have employees. See supra note 4.
    \17\ Rule 308-Equities applies only to the equities market. Rule 
9232 governs disciplinary proceedings for both the equities and 
options markets.
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    Moreover, the Exchange believes that as a practical matter the 
proposed change is consistent with current practice, as the board to 
whom authority has been delegated pursuant to Rule 308-Equities(c) is 
the Board itself, and as a result the Board appoints both the Hearing 
Board and the Acceptability Board. The Exchange believes that having 
the full Board make appointments is the more conservative option for 
appointing Hearing Board members, who serve at the pleasure of the 
Board. For this reason, the Exchange believes that the proposed change 
would be beneficial to both investors and the public interest, thereby 
promoting the maintenance of a fair and orderly market and the 
protection of investors and the public interest. In addition, because 
the substance and process set forth in Rule 308-Equities would remain 
unchanged, the Exchange believes that the proposed changes would 
continue to provide fair procedures for the denial of membership to any 
person seeking Exchange membership, the barring of any person from 
becoming associated with a member, and the prohibition or limitation by 
the Exchange of any person with respect to access to services offered 
by the Exchange or a member thereof consistent with the objectives of 
Section 6(b)(7) \18\ and Section 6(d)(2) \19\ of the Act.
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    \18\ 15 U.S.C. 78f(b)(7).
    \19\ 15 U.S.C. 78f(d)(2).
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    The Exchange has also determined to update proposed Rule 9232 to 
include principal executives on the Hearing Board so long as they are 
not members of the Board, and permit principal executives who have 
retired from the securities industry to be appointed to the Hearing 
Board. The addition would be consistent with current and proposed Rule 
308-Equities(c), which allow principal executives of the Exchange to 
serve on an Acceptability Committee.\20\ The Exchange believes that 
this consistency would be beneficial to both investors and the public 
interest, thereby promoting the maintenance of a fair and orderly 
market and the protection of investors and the public interest 
consistent with Section 6(b)(5) of the Act.\21\
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    \20\ The proposed addition of ``principal executives'' is 
consistent with NYSE Rule 9232, as recently revised. See NYSE Rule 
9232(b) (Criteria for Selection of Panelists, Replacement Panelists, 
and Floor-Based Panelists), and Securities Exchange Act Release No. 
97206 (March 27, 2023), 88 FR 19334 (March 31, 2023) (SR-NYSE-2023-
19) (Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change to Amend Rule 308 as Defined in Rule 9232(b) and Delete and 
Replace Certain Obsolete References).
    \21\ 15 U.S.C. 78f(b)(5).
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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 rather is concerned 
solely with streamlining the process of appointing individuals to 
boards charged with specific functions under the Exchange's rules and 
eliminating duplication in the appointment of Exchange boards and with 
deleting and, where applicable, replacing, references to obsolete 
references in its rules.

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) of the Act \22\ and Rule 19b-4(f)(6) \23\ thereunder. 
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) of the Act \24\ and Rule 19b-4(f)(6) \25\ 
thereunder.
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    \22\ 15 U.S.C. 78(b)(3)(A).
    \23\ 17 CFR 240.19b-4(f)(6).
    \24\ 15 U.S.C. 78s(b)(3)(A).
    \25\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires the Exchange to give the Commission written notice of the 
Exchange's intent to file the proposed rule change, along with a 
brief description and text of 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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[[Page 35972]]

    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 will institute proceedings to 
determine whether the proposed rule change 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-2023-29 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-2023-29. 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. Do not include 
personal identifiable information in submissions; you should submit 
only information that you wish to make available publicly. We may 
redact in part or withhold entirely from publication submitted material 
that is obscene or subject to copyright protection. All submissions 
should refer to File Number SR-NYSEAMER-2023-29 and should be submitted 
on or before June 22, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-11609 Filed 5-31-23; 8:45 am]
BILLING CODE 8011-01-P