[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Notices]
[Pages 53952-53955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21678]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67740; File No. SR-NYSEMKT-2012-37]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending NYSE MKT Rules 
103B(IX)--Equities and 504--Equities To Provide That a Designated 
Market Maker Unit May Trade at the Same Panel Securities Traded on the 
Exchange and/or Securities Listed on the New York Stock Exchange LLC

August 28, 2012.
    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 August 22, 2012, NYSE MKT LLC (the ``Exchange'' or ``NYSE 
MKT'') 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 Exchange. The 
Commission is publishing this notice to

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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 NYSE MKT Rules 103B(IX)--Equities 
and 504--Equities to provide that a Designated Market Maker (``DMM'') 
unit may trade at the same panel securities traded on the Exchange and/
or securities listed on the New York Stock Exchange LLC (``NYSE''). 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend NYSE MKT Rules 103B- Equities 
(``Rule 103B'') and 504--Equities (``Rule 504'') to provide that a DMM 
unit may trade at the same panel securities traded at the Exchange and/
or securities listed on the NYSE.
    Background
    Rule 103B(IX) currently provides that securities listed on the 
Exchange or admitted to dealings on the Exchange pursuant to a grant of 
unlisted trading privileges, i.e., Nasdaq Securities,\3\ (collectively, 
``Exchange-traded securities'') shall be assigned for trading only at 
panels exclusively designated for trading securities on the Exchange. 
The rule further provides that ``DMM units may only trade securities 
listed on the Exchange or admitted to dealings on the Exchange pursuant 
to a grant of unlisted trading privileges at panels exclusively 
designated for trading securities on the Exchange.'' In practice, this 
means that a DMM panel designated for trading in Exchange-traded 
securities may not also be assigned securities listed on the New York 
Stock Exchange, LLC (``NYSE'').\4\ This rule was adopted in 2008, when 
the Exchange moved from the 86 Trinity Place location and trading 
systems to 11 Wall Street and the NYSE trading systems,\5\ and amended 
in 2010 when the Exchange began trading Nasdaq Securities.\6\ At the 
time, the Exchange proposed that Exchange-traded Securities be traded 
at separate panels designated for trading in NYSE securities to prevent 
any potential confusion between Exchange and NYSE rules.
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    \3\ See Exchange Rule 501(c)--Equities.
    \4\ The restriction on trading Exchange-traded securities and 
NYSE-listed securities at the same panel is only in Exchange rules; 
NYSE rules do not have a counterpart.
    \5\ See Securities Exchange Act Release No. 58705 (Oct 1, 2008), 
73 FR 58995 (Oct. 8. 2008) (SR-Amex-2008-63).
    \6\ See Securities Exchange Act Release No. 62479 (July 9, 
2010), 75 FR 41264 (July 15, 2010) (SR-NYSEAmex-2010-31) (Amending 
Rule 103B to permit trading of Exchange-traded securities on posts 
throughout the Trading Floor).
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    Rule 504(b)(6) further provides that DMM units registered on both 
the Exchange and the NYSE must commit staff, including DMMs and clerks, 
for the trading of NYSE-listed securities separate from that for the 
trading of Exchange-listed securities and/or Nasdaq Securities. The 
rule further provides that ``[i]ndividual DMMs and support staff will 
not be permitted to trade NYSE-listed securities together with 
Exchange-listed securities and/or Nasdaq Securities at the same time.'' 
Rule 504(d) also provides that, in accordance with Rule 103B(IX), 
Nasdaq Securities shall be allocated for trading only at panels 
exclusively designated for trading Nasdaq Securities and/or securities 
listed on the Exchange.
    As a result of these rule requirements, DMM units that are 
registered in both Exchange-traded securities and NYSE-listed 
securities must maintain separate panels and staff for NYSE-listed 
securities. In addition, Exchange DMM units must maintain separate 
panels and staff for Nasdaq Securities, separate from Exchange-listed 
securities.
Proposed Amendments
    The Exchange proposes to eliminate the restrictions on a DMM unit 
trading Exchange-listed, Nasdaq Securities, and NYSE-listed securities 
at the same panel. To effect this change, the Exchange proposes to 
amend Rule 103B(IX) to provide that Exchange-traded securities may be 
assigned to panels that also trade NYSE-listed securities, delete Rule 
504(b)(6), and amend Rule 504(d) to provide that Nasdaq Securities may 
be allocated to DMM units for trading at panels that also trade 
Exchange-listed and/or NYSE-listed securities.
    The Exchange notes that even if Exchange-traded securities and 
NYSE-listed securities are assigned to a single panel, the Exchange 
will keep them on separate Display Book systems. To the extent the 
rules applicable to a security differ between the Exchange and NYSE, 
the separate Display Book systems will operate in accordance with the 
separate rules. In addition, the individual DMMs and clerks will be 
able to sign into ID Track simultaneously for both Exchange-traded and 
NYSE-listed securities so that the Exchange can continue to track which 
securities a DMM and Floor clerk is operating in for a particular 
day.\7\
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    \7\ See Exchange Rule 103.11--Equities.
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    The Exchange proposes these changes to reflect the changes in the 
trading environment, as compared to 2010, when Rule 504 was adopted and 
Rule 103B(IX) was last amended. In particular, the Exchange believes 
the changes are warranted because they reflect the changing landscape 
for DMM units. In 2010, when the rules relating to trading Nasdaq 
Securities were adopted, only one of the DMM units registered to trade 
on the Exchange was also registered to trade securities listed on the 
NYSE. Now, all DMM units registered to trade on the Exchange are also 
registered to trade securities listed on the NYSE. In addition, former 
NYSE-only DMM units are now all either registered, or in the process of 
registering, to trade Exchange-traded securities. Accordingly, all but 
one DMM units that operate on the Trading Floor are now dually-
registered for Exchange-traded and NYSE-listed securities.
    The Exchange notes that the rationale provided in 2010 to maintain 
separate panels was to reduce confusion between Exchange and NYSE 
rules. However, the Exchange believes that now that DMM units and Floor 
broker firms have had two years' experience managing Exchange-traded 
and NYSE-listed securities on the Trading Floor, the risk of confusion 
among trading rules has been obviated through experience. Accordingly, 
the stated need in 2010 to maintain separate panels is no longer 
necessary, and is outweighed by the inefficiencies in DMM unit 
operations that maintaining separate panels entails.
    The Exchange further notes that the Exchange and NYSE already 
operate in an integrated manner on a single physical Trading Floor, and 
the proposed change is minimally

[[Page 53954]]

incremental. For example, in 2008, when the Exchange moved to its 
current location, it adopted a rule that made clear that Exchange-
traded equity securities would be traded on the systems and facilities 
of NYSE Market, Inc., which are located at 11 Wall Street and are the 
same systems and facilities where NYSE-listed securities trade.\8\ In 
recognition of the fact that the Exchange-traded and NYSE-listed 
securities would be trading on the same physical space, in 2008, the 
Exchange adopted Exchange Rule 2.10--Equities, which provides that any 
registered broker dealer that is approved or deemed approved as a 
member organization of the NYSE shall be approved as an Exchange member 
organization. Similarly, pursuant to Exchange Rule 2.20--Equities, all 
natural persons who were approved or deemed approved as a member of the 
NYSE, i.e., all NYSE DMMs and Floor brokers, were similarly deemed 
approved as members of the Exchange.\9\ Accordingly, as part of the 
move of the Exchange to the NYSE facilities, all Floor brokers and DMMs 
were approved as member organizations of both the Exchange and the 
NYSE. As a practical matter, this meant that Floor brokers were 
approved to operate from their Trading Floor booth premises to trade 
both Exchange-traded and NYSE-listed securities.
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    \8\ See Exchanges [sic] Rule 0(b) and 0--Equities. In addition, 
the Exchange's Equities Trading Floor is defined as the physical 
locations commonly known as the ``Main Room'' and the ``Garage'', 
which is the same definition of Trading Floor for the NYSE. See 
Exchange Rule 6A--Equities and NYSE Rule 6A.
    \9\ NYSE adopted similar rules pursuant to which Exchange member 
organizations and members were deemed approved as NYSE member 
organizations and members. See NYSE Rules 2.10 and 2.20.
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    With respect to the physical location of DMM units assigned to 
Exchange-listed securities, the Exchange notes that in 2008, Exchange-
listed securities were physically located at DMM posts in the 
``Garage'' room of the Trading Floor. However, in 2010, when the 
Exchange adopted its pilot program to trade Nasdaq Securities, the 
Exchange further integrated Exchange-listed securities and Nasdaq 
Securities at DMM posts throughout the Trading Floor, which had the 
practical effect of moving Exchange-traded securities from the posts 
located in the Garage and having them assigned to posts in both the 
Main Room and the Garage, at panels that were contiguous with panels 
that traded NYSE-listed securities.\10\ The Exchange believes that the 
current proposal to permit Exchange-traded and NYSE-listed securities 
to trade at a single panel within a post is an incremental change from 
the existing physical integration between Exchange and NYSE trading 
that raises no new or novel regulatory issues.
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    \10\ See supra footnote 6. In the approval order, the Commission 
noted that the integration of Exchange-traded and NYSE-listed 
securities trading at the same post was reasonable and consistent 
with the Act.
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2. Statutory Basis
    The Exchange believes 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. In particular, 
the Exchange believes that its proposal is consistent with Section 6(b) 
of the Act,\11\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\12\ in particular, because it is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, 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.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposal promotes just and equitable 
principles of trade because it will remove a restriction that is 
applicable only to DMM units. Off-Floor market makers, and Exchange 
supplemental liquidity provides [sic], do not have similar 
restrictions, and may assign personnel to trade in equity securities 
regardless of the listing venue. The Exchange therefore believes that 
the proposed rule change would eliminate a restriction that places DMMs 
at a competitive disadvantage as compared to off-Floor market 
participants. The Exchange further believes that the proposed rule 
change removes impediments to and perfects the mechanism of a free and 
open market because it would eliminate rule-based requirements that 
impose unnecessary restrictions on DMM units that in today's market 
environment, serve only to force DMM units to operate in an inefficient 
manner, and at a competitive disadvantage to off-Floor market 
participants. Rather, the proposed rule change will perfect the 
mechanism of a free and open market by assuring that DMM units staff 
the securities registered with that DMM unit based on the needs of the 
market, rather than on artificial constraints imposed by rule.
    Finally, the Exchange believes that the proposal to further 
integrate trading of Exchange-traded and NYSE-listed securities at a 
single panel of a DMM post is consistent with the Act because the 
Commission has already approved the existing integration to permit 
Exchange-traded and NYSE-listed securities to trade at the same DMM 
post. The Exchange believes that permitting the securities to trade at 
a single panel is an incremental change because currently, Exchange-
traded and NYSE-listed securities can trade at contiguous panels at the 
same post. Therefore, the proposed change does not raise any new or 
novel regulatory issues.

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.

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

    Because the foregoing proposed rule change does not significantly 
affect the protection of investors or the public interest, does not 
impose any significant burden on competition, and, by its terms, does 
not 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 \13\ and Rule 19b-
4(f)(6) thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 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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    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.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule

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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-NYSEMKT-2012-37 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-NYSEMKT-2012-37. 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-NYSEMKT-2012-37 and should 
be submitted on or before September 25, 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. 2012-21678 Filed 8-31-12; 8:45 am]
BILLING CODE 8011-01-P