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Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Notices
IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing.
Comments may be submitted by any of the following methods:
Electronic Comments Use the Commissions internet comment form http www.sec.gov/
rules/sro.shtml; or Send an email to rule-comments@
sec.gov. Please include File Number 4
523 on the subject line.

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Paper Comments Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 205491090.
All submissions should refer to File Number 4523. 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 Commissions internet website http www.sec.gov/rules/
sro.shtml. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed plan that are filed with the Commission, and all written communications relating to the proposed plan 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 Commissions 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 plan also will be available for inspection and copying at the principal offices of FINRA and NYSE Arca. 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 4523 and should be submitted on or before February 19, 2021.
V. Discussion The Commission finds that the proposed Amended Plan is consistent with the factors set forth in Section 17d of the Act 13 and Rule 17d2c thereunder 14 in that the proposed Amended Plan is necessary or 13 15
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appropriate in the public interest and for the protection of investors, fosters cooperation and coordination among SROs, and removes impediments to and fosters the development of the national market system. In particular, the Commission believes that the proposed Amended Plan should reduce unnecessary regulatory duplication by allocating to FINRA certain examination and enforcement responsibilities for Common Members that would otherwise be performed by both FINRA
and NYSE Arca. Accordingly, the proposed Amended Plan promotes efficiency by reducing costs to Common Members. Furthermore, because NYSE
Arca and FINRA will coordinate their regulatory functions in accordance with the Amended Plan, the Amended Plan should promote investor protection.
The Commission notes that, under the Amended Plan, NYSE Arca and FINRA
have allocated regulatory responsibility for those NYSE Arca rules, set forth in the Certification, that are substantially similar to the applicable FINRA rules in that examination for compliance with such provisions and rules would not require FINRA to develop one or more new examination standards, modules, procedures, or criteria in order to analyze the application of the rule, or a Common Members activity, conduct, or output in relation to such rule. In addition, under the Amended Plan, FINRA would assume regulatory responsibility for certain provisions of the federal securities laws and the rules and regulations thereunder that are set forth in the Certification. The Common Rules covered by the Amended Plan are specifically listed in the Certification, as may be amended by the Parties from time to time.
According to the Amended Plan, NYSE Arca will review the Certification at least annually, or more frequently if required by changes in either the rules of NYSE Arca or FINRA, and, if necessary, submit to FINRA an updated list of Common Rules to add NYSE Arca rules not included on the then-current list of Common Rules that are substantially similar to FINRA rules;
delete NYSE Arca rules included in the then-current list of Common Rules that no longer qualify as common rules; and confirm that the remaining rules on the list of Common Rules continue to be NYSE Arca rules that qualify as common rules.15 FINRA will then confirm in writing whether the rules listed in any updated list are Common Rules as defined in the Amended Plan.
Under the Amended Plan, NYSE Arca also will provide FINRA with a current 15 See
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list of Common Members and will update the list no less frequently than once each quarter.16 The Commission believes that these provisions are designed to provide for continuing communication between the Parties to ensure the continued accuracy of the scope of the proposed allocation of regulatory responsibility.
The Commission is hereby declaring effective an Amended Plan that, among other things, allocates regulatory responsibility to FINRA for the oversight and enforcement of all NYSE
Arca rules that are substantially similar to the rules of FINRA for Common Members of NYSE Arca and FINRA.
Therefore, modifications to the Certification need not be filed with the Commission as an amendment to the Amended Plan, provided that the Parties are only adding to, deleting from, or confirming changes to NYSE
Arca rules in the Certification in conformance with the definition of Common Rules provided in the Amended Plan. However, should the Parties decide to add a NYSE Arca rule to the Certification that is not substantially similar to a FINRA rule;
delete a NYSE Arca rule from the Certification that is substantially similar to a FINRA rule; or leave on the Certification a NYSE Arca rule that is no longer substantially similar to a FINRA
rule, then such a change would constitute an amendment to the Amended Plan, which must be filed with the Commission pursuant to Rule 17d2 under the Act.17
Under paragraph c of Rule 17d2, the Commission may, after appropriate notice and comment, declare a plan, or any part of a plan, effective. In this instance, the Commission believes that appropriate notice and comment can take place after the proposed amendment is effective. The primary purpose of the amendment is to remove Regulation SHO from the Certification.
The Commission notes that the prior version of this plan immediately prior to this proposed amendment was published for comment and the Commission did not receive any comments thereon.18 Furthermore, the Commission does not believe that the amendment to the plan raises any new 16 See
paragraph 3 of the Amended Plan.
addition to or deletion from the Certification of any federal securities laws, rules, and regulations for which FINRA would bear responsibility under the Amended Plan for examining, and enforcing compliance by, Common Members, also would constitute an amendment to the Amended Plan.
18 See supra note 12 citing to Securities Exchange Act Release No. 55505.
17 The
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