[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Notices]
[Pages 62119-62120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25827]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65455; File No. SR-NYSEArca-2011-61]


Self-Regulatory Organizations; NYSE Arca, Inc; Order Approving a 
Proposed Rule Change Amending NYSE Arca Equities Rule 7.45(c)(2) To 
Make Permanent the Pilot Program That Permits the Exchange To Accept 
Inbound Orders Routed by Archipelago Securities LLC in Its Capacity as 
a Facility of Affiliated Exchanges and To Clarify the Text of NYSE Arca 
Equities Rule 7.45(c)(1)(B) to More Accurately Reflect the Regulatory 
Services Agreement Between the Exchange and the Financial Industry 
Regulatory Authority

September 30, 2011.

I. Introduction

    On August 18, 2011, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to 
make permanent the existing pilot program that permits the Exchange to 
accept inbound orders routed by Archipelago Securities LLC (``Arca 
Securities'') in its capacity as a facility of an affiliated exchange 
(with the attendant obligations and conditions), and to clarify the 
text of NYSE Arca Equities Rule 7.45(c)(1)(B) to more accurately 
reflect the regulatory services agreement (``RSA'') between the 
Exchange and the Financial Industry Regulatory Authority (``FINRA''). 
The proposed rule change was published for comment in the Federal 
Register on August 26, 2011.\3\ The Commission received no comment 
letters regarding the proposed rule change. This order approves the 
proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 65185 (August 22, 
2011), 76 FR 53509 (``Notice'').
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II. Background

    Arca Securities is a broker-dealer that is an NYSE Arca equity 
trading permit holder (``ETP Holder''),\4\ and, among other things, is 
permitted to provide to members of NYSE and NYSE Amex optional routing 
services to other market centers.\5\ On June 16, 2011, the Exchange 
filed an immediately effective proposed rule change to, among other 
things, permit the Exchange to receive inbound routes of equity orders 
that Arca Securities routes in its capacity as a facility of NYSE and 
NYSE Amex on a pilot basis ending September 30, 2011.\6\ The Exchange 
now seeks permanent approval of this inbound routing pilot.\7\
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    \4\ ``ETP Holder'' is defined in NYSE Arca Equities Rule 1.1(n). 
Arca Securities is owned indirectly by NYSE Euronext (``NYSE 
Euronext''), which also indirectly owns three registered securities 
exchanges--NYSE Amex LLC (``NYSE Amex''), the Exchange, and New York 
Stock Exchange LLC (``NYSE''). Thus, Arca Securities is an affiliate 
of each of these exchanges.
    \5\ Arca Securities operates as a facility of NYSE and NYSE Amex 
that provides outbound routing from NYSE and NYSE Amex to other 
market centers, subject to certain conditions. See Securities 
Exchange Act Release Nos. 58705 (October 1, 2008) 73 FR 58995 
(October 8, 2008) (SR-Amex-2008-63); and 55590 (April 5, 2007) 72 FR 
18707 (April 13, 2007) (SR-NYSE-2007-29).
    \6\ See Securities Exchange Act Release No. 64730 (June 23, 
2011), 76 FR 38235 (June 29, 2011) (SR-NYSEArca-2011-38) (``Routing 
Pilot Release''). See also Notice, 76 FR at 53510, n.5 and 
accompanying text.
    \7\ See Notice.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange.\8\ 
Specifically, the

[[Page 62120]]

Commission finds that the proposed rule change is consistent with 
Section 6(b)(1) of the Act,\9\ which requires, among other things, that 
a national securities exchange be so organized and have the capacity to 
carry out the purposes of the Act, and to comply and enforce compliance 
by its members and persons associated with its members, with the 
provisions of the Act, the rules and regulation thereunder, and the 
rules of the Exchange. Further, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\10\ which 
requires, among other things, that the rules of a national securities 
exchange be designed to prevent fraudulent and manipulative acts and 
practices; to promote just and equitable principles of trade; to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, and processing information with respect to, and 
facilitating transactions in securities; to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system; and, in general, to protect investors and the public interest. 
Section 6(b)(5) also requires that the rules of an exchange not be 
designed to permit unfair discrimination among customers, issuers, 
brokers, or dealers.
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    \8\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition and 
capital formation. 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f(b)(1).
    \10\ 15 U.S.C. 78f(b)(5).
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    Recognizing that the Commission has expressed concern regarding the 
potential for conflicts of interest in instances where a member firm is 
affiliated with an exchange to which it is routing orders, the Exchange 
previously implemented limitations and conditions to Arca Securities's 
affiliation with the Exchange to permit the Exchange to accept orders 
routed inbound to NYSE Arca by Arca Securities from its affiliates, 
NYSE and NYSE Amex, on a pilot basis.\11\ The Exchange now seeks to 
make this pilot permanent, and to more accurately reflect in its rule 
text its RSA with FINRA. Specifically, the Exchange states it is in 
compliance with the following obligations and conditions:\12\
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    \11\ See Routing Pilot Release. See also supra note 6 and 
accompanying text.
    \12\ See Notice, 76 FR at 53510.
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     First, the Exchange will maintain an agreement pursuant to 
Rule 17d-2 under the Exchange Act with FINRA to relieve the Exchange of 
regulatory responsibilities for Arca Securities with respect to rules 
that are common rules between the Exchange and FINRA, and maintain an 
RSA with FINRA to perform regulatory responsibilities for Arca 
Securities for unique Exchange rules.
     Second, the RSA will require the Exchange to provide FINRA 
with information, in an easily accessible manner, regarding all 
exception reports, alerts, complaints, trading errors, cancellations, 
investigations, and enforcement matters (collectively ``Exceptions'') 
in which Arca Securities is identified as a participant that has 
potentially violated Exchange or Commission Rules and of which the 
Exchange becomes aware, and shall require that FINRA provide a report, 
at least quarterly, to the Exchange quantifying all Exceptions in which 
Arca Securities is identified as a participant that has potentially 
violated Exchange or Commission Rules; \13\
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    \13\ See Notice, 76 FR at 53510, n.8 and accompanying text. The 
Exchange proposed to modify this provision, as set forth in NYSE 
Arca Equities Rule 7.45(c)(1)(B) to more accurately reflect its RSA 
with FINRA and specify that the quarterly report of Exceptions shall 
be provided to the Exchange's Chief Regulatory Officer (``CRO''). 
The Exchange states that upon approval of this change, it will 
continue to comply with the obligations and conditions as set forth 
in NYSE Arca Equities Rule 7.45(c). See Notice, 76 FR at 53510.
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     Third, the Exchange, on behalf of its parent, NYSE 
Euronext, will establish and maintain procedures and internal controls 
reasonably designed to prevent Arca Securities from receiving any 
benefit, taking any action or engaging in any activity based on non-
public information regarding planned changes to Exchange systems, 
obtained as a result of its affiliation with the Exchange, until such 
information is available generally to similarly situated ETP Holders of 
the Exchange in connection with the provision of inbound order routing 
to the Exchange; and
     Fourth, the Exchange may furnish to Arca Securities the 
same information on the same terms that the Exchange makes available in 
the normal course of business to any other ETP Holder.\14\
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    \14\ See NYSE Arca Equities Rule 7.45(c). See also Notice, 76 FR 
at 53510.

The Exchange believes that by meeting the above-listed conditions it 
has set up mechanisms that protect the independence of the Exchange's 
regulatory responsibility with respect to Arca Securities, and has 
demonstrated that Arca Securities cannot use any information it may 
have because of its affiliation with the Exchange to its advantage.\15\
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    \15\ See Notice, 76 FR at 53510.
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    In the past, the Commission has expressed concern that the 
affiliation of an exchange with one of its members raises potential 
conflicts of interest, and the potential for unfair competitive 
advantage.\16\ Although the Commission continues to be concerned about 
potential unfair competition and conflicts of interest between an 
exchange's self-regulatory obligations and its commercial interest when 
the exchange is affiliated with one of its members, for the reasons 
discussed below, the Commission believes that it is consistent with the 
Act to permit Arca Securities to provide inbound routing to the 
Exchange on a permanent basis instead of a pilot basis, subject to the 
other conditions described above.
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    \16\ See, e.g., Securities Exchange Act Release Nos. 54170 (July 
18, 2006), 71 FR 42149 (July 25, 2006) (SR-NASDAQ-2006-006) (order 
approving Nasdaq's proposal to adopt Nasdaq Rule 2140, restricting 
affiliations between Nasdaq and its members); 53382 (February 27, 
2006), 71 FR 11251 (March 6, 2006) (SR-NYSE-2005-77) (order 
approving the combination of the New York Stock Exchange, Inc. and 
Archipelago Holdings, Inc.); 58673 (September 29, 2008), 73 FR 57707 
(October 8, 2008) (SR-Amex-2008-62) (order approving the combination 
of NYSE Euronext and the American Stock Exchange LLC); 59135 
(December 22, 2008), 73 FR 79954 (December 30, 2008) (SR-ISE-2009-
85) (order approving the purchase by ISE Holdings of an ownership 
interest in DirectEdge Holdings LLC); and 59281 (January 22, 2009), 
74 FR 5014 (January 28, 2009) (SR-NYSE-2008-120) (order approving a 
joint venture between NYSE and BIDS Holdings L.P.).
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    The Exchange has proposed four ongoing conditions applicable to 
Arca Securities's routing activities, which are enumerated above. The 
Commission believes that these conditions mitigate its concerns about 
potential conflicts of interest and unfair competitive advantage. In 
particular, the Commission believes that FINRA's oversight of Arca 
Securities,\17\ combined with FINRA's monitoring of Arca Securities's 
compliance with the Exchange's rules and quarterly reporting to NYSE 
Arca's CRO, will help to protect the independence of the Exchange's 
regulatory responsibilities with respect to Arca Securities.
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    \17\ This oversight will be accomplished through the Regulatory 
Contract between the Exchange and FINRA and a 17d-2 Agreement.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\18\ that the proposed rule change (SR-NYSEArca-2011-61) be, and 
hereby is, approved.
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    \18\ 15 U.S.C. 78s(b)(2).
    \19\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
Elizabeth M. Murphy.
Secretary.
[FR Doc. 2011-25827 Filed 10-5-11; 8:45 am]
BILLING CODE 8011-01-P