[Federal Register Volume 78, Number 8 (Friday, January 11, 2013)]
[Notices]
[Pages 2473-2475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00352]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68588; File No. SR-NYSEARCA-2012-143]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Amending the NYSE 
Arca Equities Schedule of Fees and Charges for Exchange Services With 
Respect to Regulatory Fees Related to the Central Registration 
Depository, Which Are Collected by the Financial Industry Regulatory 
Authority, Inc.

January 4, 2013.
    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 December 21, 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 
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 the NYSE Arca Equities Schedule of 
Fees and Charges for Exchange Services (the ``Fee Schedule'') with 
respect to regulatory fees related to the Central Registration 
Depository (``CRD system''), which are collected by the Financial 
Industry Regulatory Authority, Inc. (``FINRA''). The Exchange proposes 
to implement the fee changes on January 2, 2013. 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 amend the Fee Schedule with respect to 
regulatory fees related to the CRD system, which are collected by 
FINRA.\4\ The Exchange proposes to implement the fee changes on January 
2, 2013.
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    \4\ The CRD system is the central licensing and registration 
system for the U.S. securities industry. The CRD system enables 
individuals and firms seeking registration with multiple states and 
self-regulatory organizations to do so by submitting a single form, 
fingerprint card and a combined payment of fees to FINRA. Through 
the CRD system, FINRA maintains the qualification, employment and 
disciplinary histories of registered associated persons of broker-
dealers.
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    Certain of the regulatory fees provided in the Fee Schedule are 
collected and retained by FINRA via the CRD system for the registration 
of associated persons of ETP Holders that are not FINRA members (``Non-
FINRA ETP Holders''). The Exchange originally adopted fees for use of 
the CRD system in 2005.\5\ FINRA recently amended certain of the fees 
assessed for use of the CRD system, and those amendments will become 
effective January 2, 2013.\6\
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    \5\ See Securities Exchange Act Release No. 51641 (May 2, 2005), 
70 FR 24155 (May 6, 2005) (SR-PCX-2005-49).
    \6\ See Securities Exchange Act Release No. 67247 (June 25, 
2012), 77 FR 38866 (June 29, 2012) (SR-FINRA-2012-030).
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    The CRD system fees are user-based and there is no distinction in 
the cost incurred by FINRA if the user is a FINRA member or a Non-FINRA 
ETP Holder. Accordingly, the Exchange is proposing to amend the fees in 
the Fee Schedule to mirror those assessed by FINRA, which will be 
implemented concurrently with the amended FINRA fees on January 2, 
2013.\7\ The proposed changes are as follows: \8\
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    \7\ The Exchange notes that it has only adopted the CRD system 
fees charged by FINRA to Non-FINRA ETP Holders when such fees are 
applicable. In this regard, certain FINRA CRD system fees and 
requirements are specific to FINRA members, but do not apply to NYSE 
Arca-only ETP Holders.
    \8\ The Exchange is proposing to delete the current fees and 
descriptions in their entirety and replace them with the updated 
fees and descriptions in a separate table that will include all the 
fees applicable to Non-FINRA ETP Holders, as discussed further 
below. In this regard, the Exchange is proposing a new subheading in 
the ``Regulatory Fees'' section of the Fee Schedule to differentiate 
between those fees that are applicable to all ETP Holders and those 
fees that are applicable only to Non-FINRA ETP Holders. The Exchange 
notes that ETP Holders that are also FINRA members are charged CRD 
system fees according to Section (4) of Schedule A to the FINRA By-
laws.
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     Increasing the disclosure processing fee from $95 to $110; 
\9\ and
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    \9\ See Section (4)(b)(3) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. The updated description in the Fee 
Schedule for this fee would be ``additional processing of each 
initial or amended Form U4, Form U5 or Form BD that includes the 
initial reporting, amendment, or certification of one or more 
disclosure events or proceedings.'' As noted below, this would 
incorporate the applicability of the fee to Form BD processing.
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     Increasing the manual fingerprint processing fee from $13 
to $30.\10\
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    \10\ See Section (4)(b)(6) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. The updated description in the Fee 
Schedule for this fee would be ``processing and posting to the CRD 
system each set of fingerprint results and identifying information 
that have been processed through another self-regulatory 
organization and submitted to FINRA.''
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    In addition to increasing the existing CRD system fees, FINRA 
adopted a new fee for the additional processing of each initial or 
amended Form BD that includes the initial reporting, amendment, or 
certification of one or more disclosure events or proceedings.\11\ 
Broker-dealers use Form BD to, among other things, report disclosure 
matters in which they or a control affiliate have been involved. Prior 
to the adoption of the new fee, FINRA did not have a fee designed to 
cover the costs associated with the review of Form BD, notwithstanding 
that the review is similar to that performed of broker-dealers' Forms 
U4 and U5. Such reviews include confirming that the matter is properly 
reported, reviewing any documentation submitted and determining whether 
additional documentation is required, conducting any necessary 
independent research and, depending on the matter reported, analyzing 
whether the event or proceeding subjects the individual or firm to a 
statutory disqualification pursuant to Section 3(a)(39) of the Act.\12\

[[Page 2474]]

FINRA adopted a $110 fee for the review of a Form BD, which mirrors the 
increased fee adopted for the review of Forms U4 and U5. As such, the 
Exchange is adopting the identical fee for FINRA's review of a Form BD 
submitted by Non-FINRA ETP Holders.\13\
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    \11\ See Section (4)(b)(3) of Schedule A to the FINRA By-laws 
effective on January 2, 2013.
    \12\ 15 U.S.C. 78c(a)(39).
    \13\ See supra note 9.
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    The Exchange also proposes to include in its Fee Schedule certain 
other fees that are charged by FINRA to FINRA members as well as Non-
FINRA ETP Holders. These fees are as follows: \14\
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    \14\ Non-FINRA ETP Holders have been charged CRD system fees 
since 2005. See supra note 5.
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     $100 for each initial Form U4 filed for the registration 
of a representative or principal; \15\
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    \15\ See Section (4)(b)(1) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. This fee is assessed when a Non-FINRA 
ETP Holder submits its first Initial, Transfer, Relicense, or Dual 
Registration Form U4 filing on behalf of a registered person. The 
current applicable fee is $85.
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     $15 for processing and posting to the CRD system each set 
of fingerprints submitted electronically to FINRA, plus any other 
charge that may be imposed by the U.S. Department of Justice for 
processing each set of fingerprints; \16\
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    \16\ See Section (4)(b)(4) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. The current applicable fee is $13.
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     $30 for processing and posting to the CRD system each set 
of fingerprint cards submitted in non-electronic format to FINRA, plus 
any other charge that may be imposed by the U.S. Department of Justice 
for processing each set of fingerprints; \17\ and
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    \17\ See Section (4)(b)(5) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. The current applicable fee is $13.
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     $45 annually for system processing for each registered 
representative and principal.\18\
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    \18\ See Section (4)(b)(7) of Schedule A to the FINRA By-laws 
effective on January 2, 2013. The current applicable fee is $30. The 
proposed system processing fee would become effective for the 2013 
Renewal Program. In this regard, as part of FINRA's 2013 Renewal 
Program, Preliminary Renewal Statements reflecting the proposed $45 
system processing fee will be made available in the fourth quarter 
of 2012.
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    The Exchange notes that the proposed change is not otherwise 
intended to address any other issues surrounding regulatory fees and 
that the Exchange is not aware of any problems that ETP Holders would 
have in complying with the proposed change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\19\ in general, and furthers the 
objectives of Sections 6(b)(4) and 6(b)(5) of the Act,\20\ in 
particular, because it provides for the equitable allocation of 
reasonable dues, fees, and other charges among its members, issuers and 
other persons using its facilities and does not unfairly discriminate 
between customers, issuers, brokers or dealers.
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    \19\ 15 U.S.C. 78f(b).
    \20\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the change is reasonable because the 
proposed fees are identical to those adopted by FINRA for use of the 
CRD system for disclosure and the registration of FINRA members and 
their associated persons. As FINRA noted in amending its fees, it 
believed that the fees are reasonable based on the increased costs 
associated with operating and maintaining the CRD system, and listed a 
number of enhancements made since the last fee increase, including (1) 
incorporation of various uniform registration form changes; (2) 
electronic fingerprint processing; (3) Web EFTTM, which 
allows subscribing firms to submit batch filings to the CRD system; and 
(4) increases in the number and types of reports available through the 
CRD system. These increased costs are similarly borne by FINRA when a 
Non-FINRA ETP Holder uses the CRD system. FINRA further noted its 
belief that the proposed fees are reasonable because they help to 
ensure the integrity of the information in the CRD system, which is 
very important because the Commission, FINRA, other self-regulatory 
organizations and state securities regulators use the CRD system to 
make licensing and registration decisions, among other things.
    The Exchange also believes that the change is reasonable because it 
will provide greater specificity regarding the CRD system fees that are 
applicable to Non-FINRA ETP Holders. All similarly situated ETP Holders 
are subject to the same fee structure, and every ETP Holder must use 
the CRD system for registration and disclosure. Accordingly, the 
Exchange believes that the fees collected for such use should likewise 
increase in lockstep with the fees assessed to FINRA members, as is 
proposed by the Exchange. The proposed change, like FINRA's proposal, 
is equitable and not unfairly discriminatory because it will result in 
the same regulatory fees being charged to all ETP Holders required to 
report information to the CRD system and for services performed by 
FINRA, regardless of whether or not such ETP Holders are FINRA members.

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. Specifically, the Exchange 
believes that the proposed change will result in the same regulatory 
fees being charged to all ETP Holders required to report information to 
the CRD system and for services performed by FINRA, regardless of 
whether or not such ETP Holders are FINRA members.

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 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-2012-143 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-2012-143.

[[Page 2475]]

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 NYSE's principal office or on 
the Web site at www.nyse.com. 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-2012-143, and should be submitted on or before 
February 1, 2013.

    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. 2013-00352 Filed 1-10-13; 8:45 am]
BILLING CODE 8011-01-P