[Federal Register Volume 77, Number 139 (Thursday, July 19, 2012)]
[Notices]
[Pages 42529-42533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17550]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67436; File No. SR-NYSEArca-2012-73]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Establishing a Fee 
for Television Distribution of the NYSE Arca Trades Data Product

July 13, 2012.
    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 July 3, 2012, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit

[[Page 42530]]

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 establish a fee for television 
distribution of the NYSE Arca Trades data product. The text of the 
proposed rule change is available on the Exchange's Web site 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.

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 establish a fee for television 
distribution of the NYSE Arca Trades data product.
    In 2009, the Commission approved the NYSE Arca Trades data product 
and its fees.\4\ NYSE Arca Trades is a NYSE Arca-only market data 
service that allows a vendor to redistribute on a real-time basis the 
same last sale information that the Exchange reports under the 
Consolidated Tape Association (``CTA'') Plan and the NASDAQ Unlisted 
Trading Privileges Plan (``NASDAQ UTP Plan'') for including in those 
plans' consolidated data streams and certain other related data 
elements (``NYSE Arca Last Sale Information'').
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    \4\ See Securities Exchange Act Release No. 59598 (Mar. 18, 
2009); 74 FR 12919 (Mar. 25, 2009) (SR-NYSEArca-2009-05).
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    In 2010, the Commission approved changes to the fees for NYSE Arca 
Trades that modified the professional subscriber fee to consolidate the 
per-display device fee for NYSE Arca Last Sale Information relating to 
Network A and Network B Eligible Securities and securities listed on 
NASDAQ and provide an alternative to the per-device fee based on the 
number of ``Subscriber Entitlements,'' rather the basis of the number 
of devices.\5\ The Exchange charges the datafeed recipients (a) an 
access fee of $750 per month (the ``Access Fee''), and (b) at the 
election of the vendor, either (i) a device fee for professional 
subscribers of $10.00 per month or (ii) a fee based on the number of 
``Subscriber Entitlements '' (the latter two fees together, ``User 
Fees'').\6\
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    \5\ See Securities Exchange Act Release No. 62188 (May 27, 
2010); 75 FR 31484 (June 3, 2010) (SR-NYSEArca-2010-23).
    \6\ Id. at 31485-31486.
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    The Exchange proposes to add a new fee category for NYSE Arca 
Trades to provide television broadcasters \7\ with an alternative 
enterprise fee (the ``Broadcast Fee''). For the receipt of access to 
and the ability to display the datafeeds of the NYSE Arca Trades 
service by a television broadcaster, the Exchange proposes to charge a 
flat fee of $20,000 per month.\8\ Broadcasters will not be required to 
track the number of viewers.
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    \7\ Television broadcast can be through cable, satellite, or 
traditional means.
    \8\ Although the Broadcast Fee will not vary based on the amount 
of time that the datafeed is displayed during the day or the number 
of channels the broadcaster utilizes, it will be prorated if a 
television broadcaster initiates the service during the middle of a 
month.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Securities Exchange Act of 1934 
(the ``Act'') \9\ in general and with Section 6(b)(4) and 6(b)(5) of 
the Act \10\ in particular in that it provides an equitable allocation 
of reasonable fees among users and recipients of the data and is not 
designed to permit unfair discrimination among customers, issuers, and 
brokers. The proposed Broadcast Fee is reasonable, equitable, and not 
unfairly discriminatory because it will provide a convenient and easy-
to-administer way for a television broadcaster to display real-time 
NYSE Arca-only data on television, thereby providing public investors 
and other market participants who watch the broadcaster's channel with 
another means to obtain current market data. The Exchange believes that 
the Broadcast Fee will be attractive to television broadcasters because 
it will enable them to provide market data to their viewers that will 
complement the broadcasters' news reporting services without the added 
administrative burden and cost of keeping track of the number of 
viewers of the datafeed. The proposed distribution method differs, 
however, from other distribution methods in that the data will be 
available in temporary, view-only mode on television screens.\11\ Other 
available distribution methods for NYSE Arca Trades and alternative 
data products may allow the end-user to download and analyze last sale 
data in order to make trading decisions. For these reasons, the 
Exchange believes that establishing a different pricing scheme for 
television broadcasters is justified. The Exchange also believes that 
its pricing is reasonable in light of other similar products. By way of 
comparison, for example, the television ticker display fee for CTA 
Network A market data (i.e., consolidated last sale data for securities 
listed on the New York Stock Exchange) is based on the number of 
viewers of the ticker, and is capped at $125,000 month, and the 
television ticker display fee for NASDAQ securities, similarly based on 
the number of households reached by the broadcaster, is capped at 
$50,000. Both of these products require the broadcaster to track the 
number of viewers of the ticker.\12\
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4) and (5).
    \11\ A television broadcaster could elect to combine for 
broadcast the NYSE Arca Trades data with other data available to it 
for broadcast.
    \12\ The Network A Rate Schedule is available at http://www.nyxdata.com/CTA. See also NASDAQ Rule 7039, which sets forth 
fees for the distribution of NASDAQ Last Sale Data Products via 
Television.
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    The existence of alternatives to the NYSE Arca Trades data product, 
including real-time consolidated data, free delayed consolidated data, 
and proprietary last sale data from other sources, ensures that the 
Exchange cannot set unreasonable fees, or fees that are unreasonably 
discriminatory, when vendors and subscribers can elect such 
alternatives. The recent decision of the United States Court of Appeals 
for the District of Columbia Circuit in NetCoalition v. SEC, No. 09-
1042 (DC Cir. 2010), upheld the Commission's reliance upon the 
existence of competitive market mechanisms to set reasonable and 
equitably allocated fees for proprietary market data:

    In fact, the legislative history indicates that the Congress 
intended that the market system `evolve through the interplay of 
competitive forces as unnecessary regulatory restrictions are 
removed' and that the SEC wield its regulatory power `in those 
situations where competition may not be sufficient,' such as in the 
creation of a `consolidated transactional reporting system.'

    NetCoalition at 15 (quoting H.R. Rep. No. 94-229 at 92 (1975), as 
reprinted in 1975 U.S.C.C.A.N. 321, 323). The court agreed with the 
Commission's conclusion that ``Congress intended that `competitive 
forces should dictate the services and practices that constitute the

[[Page 42531]]

U.S. national market system for trading equity securities.' '' \13\
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    \13\ NetCoalition at 16.
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    As explained below in the Exchange's Statement on Burden on 
Competition, the Exchange believes that there is substantial evidence 
of competition in the marketplace for data and that the Commission can 
rely upon such evidence in concluding that the fees established in this 
filing are the product of competition and therefore satisfy the 
relevant statutory standards.\14\
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    \14\ Section 916 of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010 (``Dodd-Frank Act'') amended 
paragraph (A) of Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3), 
to make clear that all exchange fees for market data may be filed by 
exchanges on an immediately effective basis.
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    As the NetCoalition decision noted, the Commission is not required 
to undertake a cost-of-service or ratemaking approach, and the Exchange 
incorporates by reference into this proposed rule change its analysis 
of this topic in another recent rule filing.\15\
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    \15\ See Securities Exchange Act Release No. 63291 (Nov. 9, 
2010), 75 FR 70311 (Nov. 17, 2010) (SR-NYSEArca-2010-97).
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    For these reasons, the Exchange believes that the proposed fee is 
reasonable, equitable, and not unfairly discriminatory.

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. An exchange's ability to 
price its datafeed products is constrained by (1) competition among 
exchanges and other trading platforms that compete with one another in 
a variety of dimensions, (2) the existence of inexpensive real-time 
consolidated data and free delayed consolidated data, and (3) the 
inherent contestability of the market for proprietary last sale data.
    The market for proprietary last sale data products is currently 
competitive and inherently contestable because there is fierce 
competition for the inputs necessary to the creation of proprietary 
data and strict pricing discipline for the proprietary products 
themselves. Numerous exchanges compete with each other for listings, 
trades, and market data itself, providing virtually limitless 
opportunities for entrepreneurs who wish to produce and distribute 
their own market data. This proprietary data is produced by each 
individual exchange, as well as other entities, in a vigorously 
competitive market.
    It is common for broker-dealers to further exploit this competition 
by sending their order flow and transaction reports to multiple 
markets, rather than providing them all to a single market. As a recent 
Commission Concept Release noted, the ``current market structure can be 
described as dispersed and complex'' with ``trading volume * * * 
dispersed among many highly automated trading centers that compete for 
order flow in the same stocks'' and ``trading centers offer[ing] a wide 
range of services that are designed to attract different types of 
market participants with varying trading needs.'' \16\
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    \16\ Concept Release on Equity Market Structure, Securities 
Exchange Act Release No. 61358 (Jan. 14, 2010), 75 FR 3594 (Jan. 22, 
2010) (File No. S7-02-10). This Concept Release included data from 
the third quarter of 2009 showing that no market center traded more 
than 20% of the volume of listed stocks, further evidencing the 
dispersal of and competition for trading activity. Id. at 3598.
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    Competitive markets for order flow, executions, and transaction 
reports provide pricing discipline for the inputs of proprietary data 
products and therefore constrain markets from overpricing proprietary 
market data. The U.S. Department of Justice recently acknowledged the 
aggressive competition among exchanges. In announcing the abandoned bid 
for NYSE Euronext by NASDAQ OMX Group Inc. and IntercontinentalExchange 
Inc., Assistant Attorney General Christine Varney stated that exchanges 
``compete head to head to offer real-time equity data products. These 
data products include the best bid and offer of every exchange and 
information on each equity trade, including the last sale.'' \17\
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    \17\ Press Release, U.S. Department of Justice, Assistant 
Attorney General Christine Varney Holds Conference Call Regarding 
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning 
Their Bid for NYSE Euronext (May 16, 2011), available at http://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html.
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    Transaction execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. In fact, market data and trade execution are a 
paradigmatic example of joint products with joint costs. The decision 
whether and on which platform to post an order will depend on the 
attributes of the platform where the order can be posted, including the 
execution fees, data quality, and price and distribution of its data 
products. Without trade executions, exchange data products cannot 
exist.
    Further, data products are valuable to many end users only insofar 
as they provide information that end users expect will assist them or 
their customers in making trading decisions. The Exchange notes in that 
respect that making the NYSE Arca Trades service available on 
television at a more economical and easier to administer fee would 
encourage more television broadcasters to choose to offer the datafeed 
and thereby benefit public investors and other market participants who 
follow market developments through that medium by providing them with a 
convenient way to track price trends while watching news programs 
during the course of the trading day, thereby complementing NYSE Arca 
Trades offerings through other means.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs. Moreover, an exchange's broker-
dealer customers view the costs of transaction executions and of data 
as a unified cost of doing business with the exchange.
    Similarly, in the case of products that are distributed through 
market data vendors, the vendors provide price discipline for 
proprietary data products because they control the primary means of 
access to certain end users. Vendors impose price restraints based upon 
their business models. For example, vendors such as Bloomberg and 
Thomson Reuters that assess a surcharge on data they sell may refuse to 
offer proprietary products that end users will not purchase in 
sufficient numbers. Internet portals, such as Google, impose a 
discipline by providing only data that will enable them to attract 
``eyeballs'' that contribute to their advertising revenue. Similarly, 
television broadcasters will not elect to display NYSE Arca Trades 
unless they believe it will help them attract or maintain viewers.
    Other market participants have noted that the liquidity provided by 
the order book, trade execution, core market data, and non-core market 
data are joint products of a joint platform and have common costs.\18\ 
The Exchange agrees

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with and adopts those discussions and the arguments therein. The 
Exchange also notes that the economics literature confirms that there 
is no way to allocate common costs between joint products that would 
shed any light on competitive or efficient pricing.\19\
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    \18\ See Securities Exchange Act Release No. 62887 (Sept. 10, 
2010), 75 FR 57092, 57095 (Sept. 17, 2010) (SR-Phlx-2010-121); 
Securities Exchange Act Release No. 62907 (Sept. 14, 2010), 75 FR 
57314, 57317 (Sept. 20, 2010) (SR-NASDAQ-2010-110); and Securities 
Exchange Act Release No. 62908 (Sept. 14, 2010) (SR-NASDAQ-2010-
111), 75 FR 57321, 57324 (Sept. 20, 2010) (``all of the exchange's 
costs are incurred for the unified purposes of attracting order 
flow, executing and/or routing orders, and generating and selling 
data about market activity. The total return that an exchange earns 
reflects the revenues it receives from the joint products and the 
total costs of the joint products.''); see also August 1, 2008 
Comment Letter of Jeffrey S. Davis, Vice President and Deputy 
General Counsel, NASDAQ OMX Group, Inc., Statement of Janusz Ordover 
and Gustavo Bamberger (``because market data is both an input to and 
a byproduct of executing trades on a particular platform, market 
data and trade execution services are an example of `joint products' 
with `joint costs.' ''), attachment at pg. 4, available at 
www.sec.gov/comments/34-57917/3457917-12.pdf.
    \19\ See generally Mark Hirschey, Fundamentals of Managerial 
Economics, at 600 (2009) (``It is important to note, however, that 
although it is possible to determine the separate marginal costs of 
goods produced in variable proportions, it is impossible to 
determine their individual average costs. This is because common 
costs are expenses necessary for manufacture of a joint product. 
Common costs of production--raw material and equipment costs, 
management expenses, and other overhead--cannot be allocated to each 
individual by-product on any economically sound basis.* * * Any 
allocation of common costs is wrong and arbitrary.''). This is not 
new economic theory. See, e.g., F.W. Taussig, ``A Contribution to 
the Theory of Railway Rates,'' Quarterly Journal of Economics V(4) 
438, 465 (July 1891) (``Yet, surely, the division is purely 
arbitrary. These items of cost, in fact, are jointly incurred for 
both sorts of traffic; and I cannot share the hope entertained by 
the statistician of the Commission, Professor Henry C. Adams, that 
we shall ever reach a mode of apportionment that will lead to 
trustworthy results.'').
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    Analyzing the cost of market data distribution in isolation from 
the cost of all of the inputs supporting the creation of market data 
will inevitably underestimate the cost of the data. Thus, because it is 
impossible to create data without a fast, technologically robust, and 
well-regulated execution system, system costs and regulatory costs 
affect the price of market data. It would be equally misleading, 
however, to attribute all of an exchange's costs to the market data 
portion of an exchange's joint product. Rather, all of an exchange's 
costs are incurred for the unified purposes of attracting order flow, 
executing and/or routing orders, and generating and selling data about 
market activity. The total return that an exchange earns reflects the 
revenues it receives from the joint products and the total costs of the 
joint products.
    Competition among trading platforms can be expected to constrain 
the aggregate return that each platform earns from the sale of its 
joint products, but different platforms may choose from a range of 
possible, and equally reasonable, pricing strategies as the means of 
recovering total costs. For example, some platforms may choose to pay 
rebates to attract orders, charge relatively low prices for market 
information (or provide information free of charge), and charge 
relatively high prices for accessing posted liquidity. Other platforms 
may choose a strategy of paying lower rebates (or no rebates) to 
attract orders, setting relatively high prices for market information, 
and setting relatively low prices for accessing posted liquidity. In 
this environment, there is no economic basis for regulating maximum 
prices for one of the joint products in an industry in which suppliers 
face competitive constraints with regard to the joint offering.
    The level of competition and contestability in the market is 
evident in the numerous alternative venues that compete for order flow, 
including 12 equities self-regulatory organization (``SRO'') markets, 
as well as internalizing broker-dealers (``BDs'') and various forms of 
alternative trading systems (``ATSs''), including dark pools and 
electronic communication networks (``ECNs''). Each SRO market competes 
to produce transaction reports via trade executions, and two FINRA-
regulated Trade Reporting Facilities (``TRFs'') compete to attract 
internalized transaction reports.
    The large number of SROs, TRFs, BDs, and ATSs that currently 
produce proprietary data or are currently capable of producing it 
provides further pricing discipline for proprietary data products. Each 
SRO, TRF, ATS, and BD is currently permitted to produce proprietary 
data products, and many currently do or have announced plans to do so, 
including but not limited to the Exchange, NYSE, NYSE Amex, NASDAQ OMX, 
BATS, and Direct Edge.
    The fact that proprietary data from ATSs, BDs, and vendors can 
bypass SROs is significant in two respects. First, non-SROs can compete 
directly with SROs for the production and sale of proprietary data 
products. Second, because a single order or transaction report can 
appear in an SRO proprietary product, a non-SRO proprietary product, or 
both, the amount of data available via proprietary products is greater 
in size than the actual number of orders and transaction reports that 
exist in the marketplace. Because market data users can thus find 
suitable substitutes for most proprietary market data products (in this 
case both a CTA product and a NASDAQ proprietary product are direct 
alternatives), a market that overprices its market data products stands 
a high risk that users may substitute another source of market 
information for its own.
    Moreover, consolidated data provides two additional measures of 
pricing discipline for proprietary data products that are a subset of 
the consolidated data stream. First, the consolidated data is widely 
available in real-time at $1 per month for non-professional users. 
Second, consolidated data is also available at no cost with a 15- or 
20- minute delay. Because consolidated data contains marketwide 
information, it effectively places a cap on the fees assessed for 
proprietary data (such as last sale data) that is simply a subset of 
the consolidated data. The mere availability of low-cost or free 
consolidated data provides a powerful form of pricing discipline for 
proprietary data products that contain data elements that are a subset 
of the consolidated data, by highlighting the optional nature of 
proprietary products. The Exchange notes that its Broadcast Fee for 
NYSE Arca Trades is substantially less than the fee for a similar CTA 
product.
    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid, inexpensive, and profitable. 
The history of electronic trading is replete with examples of entrants 
that swiftly grew into some of the largest electronic trading platforms 
and proprietary data producers: Archipelago, Bloomberg Tradebook, 
Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. 
Today, BATS and Direct Edge provide data at no charge on their Web 
sites in order to attract more order flow, and use market data revenue 
rebates from resulting additional executions to maintain low execution 
charges for their users.\20\
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    \20\ This is simply a securities market-specific example of the 
well-established principle that in certain circumstances more sales 
at lower margins can be more profitable than fewer sales at higher 
margins; this example is additional evidence that market data is an 
inherent part of a market's joint platform.
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    In establishing the Broadcast Fee for the NYSE Arca Trades Service, 
the Exchange considered the competitiveness of the market for data and 
all of the implications of that competition. The Exchange believes that 
it has considered all relevant factors and has not considered 
irrelevant factors in order to establish fair, reasonable, and not 
unreasonably discriminatory fees and an equitable allocation of fees 
among all users. The existence of numerous alternatives to the 
Exchange's product, including real-time consolidated data, free delayed 
consolidated data, and proprietary data from other sources, ensures 
that the

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Exchange cannot set unreasonable fees, or fees that are unreasonably 
discriminatory, when vendors and subscribers can elect these 
alternatives. Accordingly, the Exchange believes that the acceptance of 
datafeed products in the marketplace demonstrates the consistency of 
these fees with applicable statutory standards.

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 foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \21\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \22\ thereunder, because it establishes a due, fee, or other 
charge imposed by the NYSE Arca.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(2).
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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-2012-73 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-2012-73. 
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 10:00 a.m. and 3:00 p.m. Copies of such filing also will be 
available for inspection and copying at the principal offices 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-2012-73, and should be submitted on or before August 9, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-17550 Filed 7-18-12; 8:45 am]
BILLING CODE 8011-01-P