[Federal Register Volume 76, Number 245 (Wednesday, December 21, 2011)]
[Notices]
[Pages 79238-79239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32541]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65955; File No. SR-NYSEARCA-2011-90]


 Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Adopting the Text 
of Financial Industry Regulatory Authority Rule 5210, Which Prohibits 
the Publication of Manipulative or Deceptive Quotations or 
Transactions, as NYSE Arca Equities Rule 5210

December 14, 2011.
    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 December 7, 2011, NYSE Arca, Inc. (``NYSE Arca'' 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 adopt the text of Financial Industry 
Regulatory Authority (``FINRA'') Rule 5210, which prohibits the 
publication of manipulative or deceptive quotations or transactions, as 
NYSE Arca Equities Rule 5210. The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
http://www.nyse.com.

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 these 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 aspects of such statements.

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

1. Purpose
    The Exchange proposes to adopt the text of FINRA Rule 5210, which 
prohibits the publication of manipulative or deceptive quotations or 
transactions, as NYSE Arca Equities Rule 5210.\3\
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    \3\ See Securities Exchange Act Release No. 60835 (Oct. 16, 
2009), 74 FR 54616 (Oct. 22, 2009) (SR-FINRA-2009-055). The 
Exchange's affiliates, New York Stock Exchange LLC and NYSE Amex 
LLC, are proposing to adopt a substantially similar rule.
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Background
    On July 30, 2007, the National Association of Securities Dealers, 
Inc. (``NASD''), and NYSE Regulation, Inc. (``NYSER'') consolidated 
their member firm regulation operations into a combined organization, 
FINRA, and entered into a Regulatory Services Agreement under which 
FINRA agreed to perform certain regulatory functions of the Exchange on 
behalf of the Exchange. On June 14, 2010, FINRA also assumed 
responsibility for performing the market surveillance and enforcement 
functions performed by NYSER. To facilitate FINRA's performance of 
these enforcement functions and further harmonize the rules of FINRA 
and NYSE Arca Equities, the Exchange is proposing to adopt the text of 
FINRA Rule 5210.\4\ FINRA Rule 5210 prohibits members from publishing 
or circulating, or causing to be published or circulated, any 
communication that purports to report any transaction as a purchase or 
sale of any security, unless such member believes that such transaction 
was a bona fide purchase or sale of such security. The Rule also 
prohibits members from publishing or circulating, or causing to be 
published or circulated, any communication that purports to quote the 
bid price or asked price for any security, unless the member believes 
that such quotation represents a bona fide bid for, or offer of, such 
security.
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    \4\ For consistency with Exchange rules, the Exchange proposes 
to change all references from ``member'' to ``ETP Holder.''
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    The Exchange believes that the proposed rule change will strengthen 
FINRA's ability to bring sanctions on behalf of the Exchange against an 
ETP Holder for engaging in manipulative forms of quoting behavior, for 
example, quote stuffing and layering. FINRA Rule 5210 (formerly NASD 
Rule 3310 and IM 3310) \5\ was successfully used in the Acceptance, 
Waiver and Consent announced in September 2010 by FINRA against 
Trillium Brokerage Services and other individual Respondents.\6\ The 
Exchange believes that the proposed rule change would augment FINRA's 
ability on behalf of the Exchange to take action against manipulative 
quoting behavior on the Exchange.
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    \5\ See supra n. 4.
    \6\ See http://www.finra.org/web/groups/industry/@ip/@enf/@ad/documents/industry/p122044.pdf.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Securities Exchange Act of 1934 (the ``Act''),\7\ in general, and 
furthers the objectives of Section 6(b)(5),\8\ in particular, 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, and to remove impediments to and perfect 
the mechanism of a free and open market and a national market system. 
Specifically, the Exchange believes that the proposed rule change would 
provide an additional basis for bringing enforcement actions against 
ETP Holders that engage in deceptive and manipulative quoting activity. 
To the extent the Exchange has proposed changes that differ from the 
FINRA version of the Rules, such changes are technical in nature and do 
not change the substance of the FINRA Rule.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 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

[[Page 79239]]

any burden on competition not necessary or appropriate in furtherance 
of the purposes of the Act.

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)(iii) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\ 
Because the 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 prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\11\
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    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 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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    A proposed rule change filed under Rule 19b-4(f)(6) \12\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\13\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest.
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    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Exchange has requested that the Commission waive the 30-day 
operative delay. The Commission believes that waiver of the operative 
delay is consistent with the protection of investors and the public 
interest because such waiver will allow FINRA to more effectively carry 
out its enforcement activities on behalf of the Exchange. Therefore, 
the Commission designates the proposal operative upon filing.\14\
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    \14\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such 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.

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-NYSEARCA-2011-90 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEARCA-2011-90. 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 
a.m. and 3 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; 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-NYSEARCA-2011-90 and should 
be submitted on or before January 11, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-32541 Filed 12-20-11; 8:45 am]
BILLING CODE 8011-01-P