[Federal Register Volume 77, Number 181 (Tuesday, September 18, 2012)]
[Notices]
[Pages 57621-57624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22911]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67838; File No. SR-NYSEMKT-2012-46]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending Rule 993NY by 
Adding a New Paragraph (c) That Addresses the Authority of the Exchange 
or Archipelago Securities LLC (``Arca Securities'') To Cancel Orders 
When a Technical or Systems Issue Occurs and To Describe the Operation 
of an Error Account for Arca Securities

September 12, 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 August 31, 2012, NYSE MKT LLC (the ``Exchange'' or ``NYSE 
MKT'') filed with the Securities and Exchange Commission (the 
``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\ 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 amend Rule 993NY by adding a new paragraph 
(c) that addresses the authority of the Exchange or Archipelago 
Securities LLC (``Arca Securities'') to cancel orders when a technical 
or systems issue occurs and to describe the operation of an error 
account for Arca Securities. 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 Rule 993NY by adding a new paragraph 
(c) that addresses the authority of the Exchange or Arca Securities to 
cancel orders when a technical or systems issue occurs and to describe 
the operation of an error account for Arca Securities.\4\
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    \4\ Arca Securities is a facility of the Exchange. Accordingly, 
under Rule 993NY, the Exchange is responsible for filing with the 
Commission rule changes and fees relating to Arca Securities' 
functions. In addition, the Exchange is using the phrase ``Arca 
Securities or the Exchange'' in this rule filing to reflect the fact 
that a decision to take action with respect to orders affected by a 
technical or systems issue may be made in the capacity of Arca 
Securities or the Exchange depending on where those orders are 
located at the time of that decision.
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    Arca Securities is an approved routing broker of the Exchange, 
subject to the conditions listed in Rule 993NY.\5\ When necessary, the 
Exchange may utilize Arca Securities to provide outbound routing 
services from itself to routing destinations of Arca Securities 
(``routing destinations'').\6\ When Arca Securities routes orders to a 
routing destination, it does so by sending a corresponding order in its 
own name to the routing destination. In the normal course, routed 
orders that are executed at routing destinations are submitted for 
clearance and settlement in the name of Arca Securities, and Arca 
Securities arranges for any resulting securities positions to be 
delivered to the ATP Holder that submitted the corresponding order to 
the Exchange. However, from time to time, the Exchange and Arca 
Securities encounter situations in which it becomes necessary to cancel 
orders and resolve error positions.\7\
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    \5\ The Exchange currently relies on non-affiliate third-party 
broker-dealers to provide outbound routing services (i.e., third-
party Routing Brokers). In those cases, orders are submitted to the 
third-party Routing Broker through Arca Securities, the third-party 
Routing Broker routes the orders to the routing destination in its 
name, and any executions are submitted for clearance and settlement 
in the name of Arca Securities so that any resulting positions are 
delivered to Arca Securities upon settlement. As described above, 
Arca Securities normally arranges for any resulting positions to be 
delivered to the ATP Holder that submitted the corresponding order 
to the Exchange. If error positions (as defined in proposed Rule 
993NY(c)(2)) result in connection with the Exchange's use of a 
third-party Routing Broker for outbound routing, and those positions 
are delivered to Arca Securities through the clearance and 
settlement process, Arca Securities would be permitted to resolve 
those positions in accordance with proposed Rule 993NY(c). If the 
third-party Routing Broker received error positions in connection 
with its role as a routing broker for the Exchange, and the error 
positions were not delivered to Arca Securities through the 
clearance and settlement process, then the third-party Routing 
Broker would resolve the error positions itself, and Arca Securities 
would not be permitted to accept the error positions, as set forth 
in proposed Rule 993NY(c)(2)(B).
    \6\ The Exchange has also been approved to receive inbound 
routes of option orders by Arca Securities from NYSE Arca, Inc. 
(``NYSE Arca''). See Rule 993NY(b).
    \7\ The examples described in this filing are not intended to be 
exclusive. Proposed Rule 993NY(c) would provide general authority 
for the Exchange or Arca Securities to cancel orders in order to 
maintain fair and orderly markets when technical and systems issues 
are occurring, and Rule 993NY(c) also would set forth the manner in 
which error positions may be handled by the Exchange or Arca 
Securities. The proposed rule change is not limited to addressing 
order cancellation or error positions resulting only from the 
specific examples described in this filing.

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[[Page 57622]]

Examples of Circumstances That May Lead to Canceled Orders
    A technical or systems issue may arise at Arca Securities, a 
routing destination, or the Exchange that may cause the Exchange or 
Arca Securities to take steps to cancel orders if the Exchange or Arca 
Securities determines that such action is necessary to maintain a fair 
and orderly market. The examples set forth below describe some of the 
circumstances in which the Exchange or Arca Securities may decide to 
cancel orders.
    Example 1. If Arca Securities or a routing destination experiences 
a technical or systems issue that results in Arca Securities not 
receiving responses to immediate or cancel (``IOC'') orders that it 
sent to the routing destination, and that issue is not resolved in a 
timely manner, Arca Securities or the Exchange would seek to cancel the 
routed orders affected by the issue.\8\ For instance, if Arca 
Securities experiences a connectivity issue affecting the manner in 
which it sends or receives order messages to or from routing 
destinations, it may be unable to receive timely execution or 
cancellation reports from the routing destinations, and Arca Securities 
or the Exchange may consequently seek to cancel the affected routed 
orders. Once the decision is made to cancel those routed orders, any 
cancellation that an ATP Holder submitted to the Exchange on its 
initial order during such a situation would be honored.\9\
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    \8\ In a normal situation (i.e., one in which a technical or 
systems issue does not exist), Arca Securities should receive an 
immediate response to an IOC order from a routing destination, and 
would pass the resulting fill or cancellation on to the ATP Holder. 
After submitting an order that is routed to a routing destination, 
if an ATP Holder sends an instruction to cancel that order, the 
cancellation is held by the Exchange until a response is received 
from the routing destination. For instance, if the routing 
destination executes that order, the execution would be passed on to 
the ATP Holder and the cancellation instruction would be 
disregarded.
    \9\ If an ATP Holder did not submit a cancellation to the 
Exchange, however, that initial order would remain ``live'' and thus 
be eligible for execution or posting on the Exchange, and neither 
the Exchange nor Arca Securities would treat any execution of that 
initial order or any subsequent routed order related to that initial 
order as an error.
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    Example 2. If the Exchange experiences a systems issue, the 
Exchange may take steps to cancel all outstanding orders affected by 
that issue and notify affected ATP Holders of the cancellations. In 
those cases, the Exchange would seek to cancel any routed orders 
related to the ATP Holders' initial orders.
Examples of Circumstances That May Lead to Error Positions
    In some instances, the technical or systems issue at Arca 
Securities, a routing destination, the Exchange, or a non-affiliate 
third-party Routing Broker may also result in Arca Securities acquiring 
an error position that it must resolve. The examples set forth below 
describe some of the circumstances in which error positions may arise.
    Example A. Error positions may result from routed orders that the 
Exchange or Arca Securities attempts to cancel but that are executed 
before the routing destination receives the cancellation message or 
that are executed because the routing destination is unable to process 
the cancellation message. Using the situation described in Example 1 
above, assume that the Exchange seeks to cancel orders routed to a 
routing destination because it is not receiving timely execution or 
cancellation reports from the routing destination. In such a situation, 
Arca Securities may still receive executions from the routing 
destination after connectivity is restored, which it would not then 
allocate to ATP Holders because of the earlier decision to cancel the 
affected routed orders. Instead, Arca Securities would post those 
positions into its error account and resolve the positions in the 
manner described below.
    Example B. Error positions may result from an order processing 
issue at a routing destination. For instance, if a routing destination 
experienced a systems problem that affects its order processing, it may 
transmit back a message purporting to cancel a routed order, but then 
subsequently submit an execution of that same order to the OCC for 
clearance and settlement. In such a situation, the Exchange would not 
then allocate the execution to the ATP Holder because of the earlier 
cancellation message from the routing destination. Instead, Arca 
Securities would post those positions into its error account and 
resolve the positions in the manner described below.
    Example C. Error positions may result if Arca Securities receives 
an execution report from a routing destination but does not receive 
clearing instructions for the execution from the routing destination. 
For instance, assume that an ATP Holder sends the Exchange an order to 
buy 100 contracts overlying ABC stock, which causes Arca Securities to 
send an order to a routing destination that is subsequently executed, 
cleared and closed out by that routing destination, and the execution 
is ultimately communicated back to that ATP Holder. If the routing 
destination does not provide clearing instructions for that execution, 
Arca Securities would still be responsible for settling that ATP 
Holder's purchase, but would be left with a short position in its error 
account.\10\ Arca Securities would resolve the position in the manner 
described below.
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    \10\ To the extent that Arca Securities incurred a loss in 
covering its position, it may submit a reimbursement claim to that 
routing destination.
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    Example D. Error positions may result from a technical or systems 
issue that causes orders to be executed in the name of Arca Securities 
and are not related to any corresponding orders of ATP Holders. As a 
result, Arca Securities would not be able to assign any positions 
resulting from such an issue to ATP Holders. Instead, Arca Securities 
would post those positions into its error account and resolve the 
positions in the manner described below.
    Example E. Error positions may result from a technical or systems 
issue through which the Exchange does not receive sufficient notice 
that an ATP Holder that has executed trades on the Exchange has lost 
the ability to clear trades through OCC. In such a situation, the 
Exchange would not have valid clearing information, which would prevent 
the trade from being processed pursuant to Rule 960. Accordingly, Arca 
Securities would assume that ATP Holder's side of the trades so that 
the counterparties can settle the trades. Arca Securities would post 
those positions into its error account and resolve the positions in the 
manner described below.
    In the circumstances described above, Arca Securities may not learn 
about an error position until T+1, either: (1) During the clearing 
process when a routing destination has submitted to OCC a transaction 
for clearance and settlement for which Arca Securities never received 
an execution confirmation; or (2) when a routing destination does not 
recognize a transaction submitted on behalf of Arca Securities to OCC 
for clearance and settlement. Moreover, the affected ATP Holders' trade 
may not be nullified absent express authority under Exchange rules.\11\
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    \11\ See, e.g., Rule 975NY (regarding obvious and catastrophic 
errors).
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Proposed Amendments to Rule 993NY
    The Exchange proposes to amend Rule 993NY to add new paragraph (c) 
to address the cancellation of orders due to technical or systems 
issues and the use of an error account by Arca Securities.
    Specifically, under paragraph (c)(1) of the proposed rule, the 
Exchange or Arca

[[Page 57623]]

Securities would be expressly authorized to cancel orders as may be 
necessary to maintain fair and orderly markets if a technical or 
systems issue occurred at the Exchange, Arca Securities, or a routing 
destination.\12\ The Exchange or Arca Securities would be required to 
provide notice of the cancellation to affected ATP Holders as soon as 
practicable.
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    \12\ Such a situation may not cause the Exchange to declare 
self-help against the routing destination pursuant to Rule 
991NY(b)(1). If the Exchange or Arca Securities determines to cancel 
orders routed to a routing destination under proposed Rule 993NY(c), 
but does not declare self-help against that routing destination, the 
Exchange would continue to be subject to the trade-through 
requirements in the Options Order Protection and Locked/Crossed 
Markets Plan and Rule 991NY with respect to that routing 
destination.
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    Paragraph (c)(2) of the proposed rule would permit Arca Securities 
to maintain an error account for the purpose of addressing positions 
that result from a technical or systems issue at Arca Securities, the 
Exchange, a routing destination, or a non-affiliate third-party Routing 
Broker that affects one or more orders (``error positions''). By 
definition, an error position would not include any position that 
results from an order submitted by an ATP Holder to the Exchange that 
is executed on the Exchange and processed pursuant to Rule 960.\13\ 
Arca Securities also would not be permitted to accept any positions in 
its error account from an account of an ATP Holder and could not permit 
any ATP Holder to transfer any positions from the ATP Holder's account 
to Arca Securities' error account under the proposed rule.\14\ However, 
if a technical or systems issue results in the Exchange not having 
valid clearing instructions for an ATP Holder to a trade, Arca 
Securities may assume that ATP Holder's side of the trade so that the 
trade can be processed pursuant to Rule 960.\15\
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    \13\ As provided in Rule 960, ``[a]ll Exchange option 
transactions shall be submitted to the Exchange for comparison of 
trade information, and all compared transactions shall be cleared 
through the [OCC] and shall be subject to the rules of the [OCC].''
    \14\ The purpose of this provision is to clarify that Arca 
Securities may address error positions under the proposed rule that 
are caused by a technical or systems issue, but that Arca Securities 
may not accept from an ATP Holder positions that are delivered to 
the ATP Holder through the clearance and settlement process, even if 
those positions may have been related to a technical or systems 
issue at Arca Securities, the Exchange, a routing destination of 
Arca Securities, or a non-affiliate third-party Routing Broker. This 
provision would not apply, however, to situations like the one 
described above in which Arca Securities incurred a short position 
to settle an ATP Holder purchase, as the ATP Holder did not yet have 
a position in its account as a result of the purchase at the time of 
Arca Securities' action (i.e., Arca Securities' action was necessary 
for the purchase to settle into the ATP Holder's account). Moreover, 
to the extent an ATP Holder receives positions pursuant to Rule 960 
in connection with a technical or systems issue, that ATP Holder may 
seek to rely on Rule 905NY if it experiences a loss. That rule 
provides ATP Holders with the ability to file claims against the 
Exchange ``for the failure of its systems or facilities.''
    \15\ See Example E above.
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    Under paragraph (c)(3), in connection with a particular technical 
or systems issue, Arca Securities or the Exchange would be permitted to 
either (i) assign all resulting error positions to ATP Holders, or (ii) 
have all resulting error positions liquidated, as described below. Any 
determination to assign or liquidate error positions, as well as any 
resulting assignments, would be required to be made in a 
nondiscriminatory fashion.
    Arca Securities or the Exchange would be required to assign all 
error positions resulting from a particular technical or systems issue 
to the applicable ATP Holders affected by that technical or systems 
issue if Arca Securities or the Exchange:
     Determined that it has accurate and sufficient information 
(including valid clearing information) to assign the positions to all 
of the applicable ATP Holders affected by that technical or systems 
issue;
     Determined that it has sufficient time pursuant to normal 
clearance and settlement deadlines to evaluate the information 
necessary to assign the positions to all of the applicable ATP Holders 
affected by that technical or systems issue; and
     Had not determined to cancel all orders affected by that 
technical or systems issue.
    For example, a technical or systems issue of limited scope or 
duration may occur at a routing destination, and the resulting trades 
may be submitted for clearance and settlement by such routing 
destination to OCC. If there were a small number of trades, there may 
be sufficient time to match positions with ATP Holder or orders and 
avoid using the error account.
    There may be scenarios, however, where Arca Securities determines 
that it is unable to assign all error positions resulting from a 
particular technical or systems issue to all of the affected ATP 
Holders, or determines to cancel all affected routed orders. For 
example, in some cases, the volume of questionable executions and 
positions resulting from a technical or systems issue might be such 
that the research necessary to determine which ATP Holder to assign 
those executions to could be expected to extend past the normal 
settlement cycle for such executions. Furthermore, if a routing 
destination experiences a technical or systems issue after Arca 
Securities has transmitted IOC orders to it that prevents Arca 
Securities from receiving responses to those orders, Arca Securities or 
the Exchange may determine to cancel all routed orders affected by that 
issue. In such a situation, Arca Securities or the Exchange would not 
pass on to the ATP Holders any executions on the routed orders received 
from the routing destination.
    The proposed rule also would require Arca Securities to liquidate 
error positions as soon as practicable.\16\ In liquidating error 
positions, Arca Securities would be required to provide complete time 
and price discretion for the trading to liquidate the error positions 
to a third-party broker-dealer and could not attempt to exercise any 
influence or control over the timing or methods of trading to liquidate 
the error positions. Arca Securities also would be required to 
establish and enforce policies and procedures reasonably designed to 
restrict the flow of confidential and proprietary information between 
the third-party broker-dealer and Arca Securities/the Exchange 
associated with the liquidation of the error positions.
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    \16\ If Arca Securities determines in connection with a 
particular technical or systems issue that some error positions can 
be assigned to some affected ATP Holders but other error positions 
cannot be assigned, Arca Securities would be required under the 
proposed rule to liquidate all such error positions (including those 
positions that could be assigned to the affected ATP Holders).
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    Under proposed paragraph (c)(4), Arca Securities and the Exchange 
would be required to make and keep records to document all 
determinations to treat positions as error positions and all 
determinations for the assignment of error positions to ATP Holders or 
the liquidation of error positions, as well as records associated with 
the liquidation of error positions through the third-party broker-
dealer.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \17\ of 
the Securities Exchange Act of 1934 (the ``Act''), in general, and 
furthers the objectives of Section 6(b)(5),\18\ 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, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system and, 
in

[[Page 57624]]

general, to protect investors and the public interest, and it is not 
designed to permit unfair discrimination among customers, brokers, or 
dealers. The Exchange believes that this proposal is in keeping with 
those principles since Arca Securities' or the Exchange's ability to 
cancel orders during a technical and systems issue and to maintain an 
error account facilitates the smooth and efficient operations of the 
market. Specifically, the Exchange believes that allowing Arca 
Securities or the Exchange to cancel orders during a technical or 
systems issue would allow the Exchange to maintain fair and orderly 
markets. Moreover, the Exchange believes that allowing Arca Securities 
to assume error positions in an error account and to liquidate those 
positions, subject to the conditions set forth in the proposed 
amendments to Rule 993NY, would be the least disruptive means to 
correct these errors, except in cases where Arca Securities can assign 
all such error positions to all affected ATP Holders of the Exchange. 
Overall, the proposed amendments are designed to ensure full trade 
certainty for market participants and to avoid disrupting the clearance 
and settlement process. The proposed amendments are also designed to 
provide a consistent methodology for handling error positions in a 
manner that does not discriminate among ATP Holders. The proposed 
amendments are also consistent with Section 6 of the Act insofar as 
they would require Arca Securities to establish controls to restrict 
the flow of any confidential information between the third-party broker 
and Arca Securities/the Exchange associated with the liquidation of 
error positions.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 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 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: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days after the date of the filing, or such 
shorter time as the Commission may designate, it has become effective 
pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-4(f)(6) 
\20\ thereunder.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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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    NYSE MKT has requested that the Commission waive the 30-day 
operative delay.\21\ The Commission believes that waiver of the 
operative delay is consistent with the protection of investors and the 
public interest. Such waiver would allow the Exchange, without delay, 
to implement the proposed rule change, which is designed to provide a 
consistent methodology for handling error positions in a manner that 
does not discriminate among ATP Holders. The Commission also notes that 
the proposed rule change is based on, and substantially similar to, 
NYSE Arca Equities Rule 7.45(d), which the Commission recently 
approved.\22\ Accordingly, the Commission designates the proposal 
operative upon filing.\23\
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    \21\ 17 CFR 240.19b-4(f)(6)(iii).
    \22\ See Securities Exchange Act Release No. 66963 (May 10, 
2012), 77 FR 28919 (May 16, 2012) (SR-NYSEArca-2012-22).
    \23\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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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 
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-2012-46 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-2012-46. 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 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-2012-46 and should 
be submitted on or before October 9, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-22911 Filed 9-17-12; 8:45 am]
BILLING CODE 8011-01-P