[Federal Register Volume 77, Number 206 (Wednesday, October 24, 2012)]
[Notices]
[Pages 65030-65034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26144]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68066; File No. SR-NYSEMKT-2012-52]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending Rule 17--
Equities To Add a New Paragraph (c)(3) Addressing the Authority of the 
Exchange or Archipelago Securities LLC To Cancel Orders When a 
Technical or Systems Issue Occurs and To Describe the Operation of an 
Error Account for Arca Securities

October 18, 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 October 10, 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 17--Equities by adding a new 
paragraph (c)(3) 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.

[[Page 65031]]

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 17--Equities by adding a new 
paragraph (c)(3) 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 17--Equities, 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.
    From time to time, the Exchange also uses 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 securities positions to be delivered to the member 
organization that submitted the corresponding order to the Exchange. 
If error positions (as defined in proposed Rule 17(c)(3)(B)--
Equities) 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 17(c)(3)--Equities. 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 17(c)(3)(B)(ii)--Equities.
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    Arca Securities is the approved routing broker of the Exchange, 
subject to the conditions listed in Rule 17(c)--Equities. The Exchange 
relies on Arca Securities to provide outbound routing services from 
itself to routing destinations of Arca Securities (``routing 
destinations'').\5\ 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 
member organization 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.\6\
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    \5\ The Exchange has also been approved to receive inbound 
routes of equities orders by Arca Securities from the NYSE Arca 
Equities, Inc. (``NYSE Arca'') and New York Stock Exchange LLC 
(``NYSE''). See Rule 17(c)(2)--Equities.
    \6\ The examples described in this filing are not intended to be 
exclusive. Proposed Rule 17(c)(3)--Equities 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 17(c)(3)--Equities 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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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.\7\ 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 a member organization submitted to the Exchange on 
its initial order during such a situation would be honored.\8\
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    \7\ 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 member 
organization. After submitting an order that is routed to a routing 
destination, if a member organization 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 member organization and the cancellation 
instruction would be disregarded.
    \8\ If a member organization 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 member organizations of the 
cancellations. In those cases, the Exchange would seek to cancel any 
routed orders related to the member organizations' 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 member organizations because of the earlier decision to 
cancel

[[Page 65032]]

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 (i.e., a locked-in 
trade) to The Depository Trust & Clearing Corporation (``DTCC'') for 
clearance and settlement. In such a situation, the Exchange would not 
then allocate the execution to the member organization 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 a member organization sends the Exchange an 
order to buy 100 shares of 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 member organization. On the 
next trading day (T+1), if the routing destination does not provide 
clearing instructions for that execution, Arca Securities would still 
be responsible for settling that member organization's purchase, but 
would be left with a short position in its error account.\9\ Arca 
Securities would resolve the position in the manner described below.
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    \9\ To the extent that Arca Securities incurred a loss in 
covering its short position, it would 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 
that are not related to Arca Securities' function as the Exchange's 
routing broker and are not related to any corresponding orders of 
member organizations. As a result, Arca Securities would not be able to 
assign any positions resulting from such an issue to member 
organizations. Instead, 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 DTCC 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 by Arca Securities to DTCC for 
clearance and settlement. Moreover, the affected member organizations' 
trade may not be nullified absent express authority under Exchange 
rules.\10\
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    \10\ See, e.g., Rule 128--Equities (regarding clearly erroneous 
executions).
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Proposed Amendments to Rule 17--Equities
    The Exchange proposes to amend Rule 17--Equities to add new 
paragraph (c)(3) 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)(3)(A) of the proposed rule, the 
Exchange or Arca 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.\11\ The Exchange or Arca Securities would be 
required to provide notice of the cancellation to affected member 
organizations as soon as practicable.
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    \11\ Such a situation may not cause the Exchange to declare 
self-help against the routing destination pursuant to Rule 611 of 
Regulation NMS. If the Exchange or Arca Securities determines to 
cancel orders routed to a routing destination under proposed Rule 
17(c)(3)--Equities, but does not declare self-help against that 
routing destination, the Exchange would continue to be subject to 
the trade-through requirements in Rule 611 with respect to that 
routing destination.
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    Paragraph (c)(3)(B) 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 a member organization 
to the Exchange that is executed on the Exchange and processed pursuant 
to Rule 132--Equities.\12\ In addition, the Exchange proposes to add to 
the proposed rule that for purposes of proposed Rule 17(c)(3)--
Equities, uncompared transactions that may be processed pursuant to 
Rule 134(e)--Equities are not error positions of Arca Securities.\13\ 
Arca Securities also would not be permitted to accept any positions in 
its error account from an account of a member organization and could 
not permit any member organization to transfer any positions from the 
member organization's account to Arca Securities' error account under 
the proposed rule.\14\
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    \12\ As provided in Rule 132(a)--Equities, ``Each party to a 
contract shall submit data regarding its side of the contract 
(``trade data'') to a Fully-Interfaced Clearing Agency for 
comparison or settlement, but each party shall be free to select the 
Fully-Interfaced Clearing Agency of its choice for such purpose.''
    \13\ Rule 134(e)--Equities provides for the manner by which 
uncompared transactions at the Exchange are resolved.
    \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 a member organization positions that are 
delivered to the member organization 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 a member organization purchase, 
as the member organization 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 member organization's account). Moreover, to the 
extent a member organization receives positions pursuant to Rule 
132--Equities in connection with a technical or systems issue, that 
member organization may seek to rely on Rule 18--Equities if it 
experiences a loss. That rule provides member organizations with the 
ability to file claims against the Exchange ``related to an Exchange 
system failure.''
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    Under paragraph (c)(3)(C), in connection with a particular 
technical or systems issue, Arca Securities or the Exchange would be 
permitted to either (1) assign all resulting error positions to member 
organizations, or (2) 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 member organizations 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 member organizations affected by that technical or 
systems issue;
     Determined that it has sufficient time pursuant to normal 
clearance and

[[Page 65033]]

settlement deadlines to evaluate the information necessary to assign 
the positions to all of the applicable member organizations 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 DTCC. If there were a small number of trades, there may 
be sufficient time to match positions with member organization 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 member 
organizations, 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 member organization 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 member organizations 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.\15\ 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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    \15\ If Arca Securities determines in connection with a 
particular technical or systems issue that some error positions can 
be assigned to some affected member organizations 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 
member organizations).
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    Under proposed paragraph (c)(3)(D), 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 member 
organizations 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) \16\ of 
the Securities Exchange Act of 1934 (the ``Act''), in general, and 
furthers the objectives of Section 6(b)(5),\17\ 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 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 17--Equities, 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 member organizations 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 member 
organizations. 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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    \16\ 15 U.S.C. 78f(b).
    \17\ 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 \18\ and Rule 19b-4(f)(6) 
\19\ thereunder.
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    \18\ 15 U.S.C. 78s(b)(3)(A).
    \19\ 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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    The Exchange has asked the Commission to waive the 30-day operative 
delay.\20\ The Commission notes that it previously approved NYSE Arca 
Equities Rule 7.45(d), which is substantively identical to the instant 
proposed rule change.\21\ The Commission finds that waiving the 30-day 
operative delay is consistent with the protection of investors and the 
public interest because it will allow the

[[Page 65034]]

Exchange to implement the proposed rule change as part of a planned 
implementation of similar rules on the Exchange's affiliate exchanges. 
Accordingly, the Commission designates the proposal operative upon 
filing.\22\
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    \20\ 17 CFR 240.19b-4(f)(6)(iii).
    \21\ See Securities Exchange Act Release No. 66963 (May 10, 
2012), 77 FR 28919 (May 16, 2012) (SR-NYSEArca-2012-22).
    \22\ 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. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule should be approved or disapproved.

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-2012-52 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-2012-52. 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-2012-52 and should 
be submitted on or before November 14, 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. 2012-26144 Filed 10-23-12; 8:45 am]
BILLING CODE 8011-01-P