[Federal Register Volume 78, Number 68 (Tuesday, April 9, 2013)]
[Notices]
[Pages 21172-21180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08176]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69285; File No. SR-NYSEMKT-2013-32]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Implementing Certain 
Fees for NYSE MKT OpenBook, NYSE MKT Trades, and NYSE MKT BBO

April 3, 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 March 22, 2013, 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, 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 implement certain fees for NYSE MKT 
OpenBook, NYSE MKT Trades, and NYSE MKT BBO, all of which will be 
operative on April 1, 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,

[[Page 21173]]

of the most significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to establish certain fees for NYSE MKT 
OpenBook, NYSE MKT Trades, and NYSE MKT BBO, all of which will be 
operative on April 1, 2013. The subsections below describe (1) The 
background on the current fees for these real-time products; (2) a 
description of the proposed fees for NYSE MKT OpenBook (excluding the 
proposed non-display fees); (3) the rationale for creating a new non-
display usage fee structure; (4) the proposed fees for non-display use, 
which will include internal non-display use and managed non-display 
use; and (5) examples comparing the current and proposed fees.
Background on Current Fees
    Currently, there are no fees for the equities data distributed via 
NYSE MKT OpenBook.\4\ The current monthly fees for NYSE MKT BBO \5\ and 
NYSE MKT Trades \6\ are as follows:
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    \4\ See Securities Exchange Act Release No. 60123 (June 17, 
2009), 74 FR 30192 (June 24, 2009) (File No. SR-NYSEAmex-2009-28) 
(``OpenBook Release''). Separate fees have been established for the 
NYSE MKT OpenBook options data. See Securities Exchange Act Release 
No. 68004 (Oct. 9, 2012), 77 FR 62582 (Oct. 15, 2012) (SR-NYSEMKT-
2012-49).
    \5\ See Securities Exchange Act Release No. 62187 (May 27, 
2010), 75 FR 31500 (June 3, 2010) (SR-NYSEAmex-2010-35).
    \6\ See SR-NYSEMKT-2013-31.

----------------------------------------------------------------------------------------------------------------
                                                                   Digital media
            Product               Access fee   Subscriber fees     enterprise fee        Redistribution fee
----------------------------------------------------------------------------------------------------------------
NYSE MKT BBO...................         $750  Professional: $10                N/A  N/A.
                                              Non-professional:
                                               $5.
                                              Per Quote: $0.005
NYSE MKT Trades................      750 \7\  $10..............             $5,000  $1,000 (operative May 1,
                                                                                     2013).
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\7\ One $750 monthly access fee entitles a vendor to receive both the NYSE MKT BBO data feed as well as the
  Exchange's NYSE MKT Trades data feed. See supra n.4.

    While the majority of subscribers pay the subscriber fee for each 
display or non-display device that has access to NYSE MKT BBO and NYSE 
MKT Trades as set forth above, a small number of vendors and 
subscribers are eligible for, and have elected, the NYSE MKT Unit-of-
Count Policy that was first introduced by the Exchange's affiliate, New 
York Stock Exchange LLC (``NYSE''), in 2009 \8\ and is now also 
available for NYSE MKT BBO and NYSE MKT Trades.\9\ Under this fee 
structure, these vendors and subscribers are subject to a fee structure 
that utilizes the following basic principles:
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    \8\ See Securities Exchange Act Release Nos. 62038 (May 5, 
2010), 75 FR 26825 (May 12, 2010) (SR-NYSE-2010-22); 62181 (May 26, 
2010), 75 FR 31488 (June 3, 2010) (SR-NYSE-2010-30); and 59290 (Jan. 
23, 2009), 74 FR 5707 (Jan. 30, 2009) (SR-NYSE-2009-05).
    \9\ See supra n.4.

    i. Vendors.
     ``Vendors'' are market data vendors, broker-dealers, 
private network providers, and other entities that control 
Subscribers' access to a market data product through Subscriber 
Entitlement Controls (as described below).
    ii. Subscribers.
     ``Subscribers'' are unique individual persons or 
devices (which include both display and non-display devices) to 
which a Vendor provides a market data product. Any individual or 
device that receives the market data product from a Vendor is a 
Subscriber, whether the individual or device works for or belongs to 
the Vendor, or works for or belongs to an entity other than the 
Vendor.
     Only a Vendor may control Subscriber access to the 
market data product.
     Subscribers may not redistribute the market data 
product in any manner.
    iii. Subscriber Entitlements.
     A Subscriber Entitlement is a Vendor's permitting a 
Subscriber to receive access to the market data product through an 
Exchange-approved Subscriber Entitlement Control.
     A Vendor may not provide access to a market data 
product to a Subscriber except through a unique Subscriber 
Entitlement.
     The Exchange will require each Vendor to provide a 
unique Subscriber Entitlement to each unique Subscriber.
     At prescribed intervals (normally monthly), the 
Exchange will require each Vendor to report each unique Subscriber 
Entitlement.
    iv. Subscriber Entitlement Controls.
     A Subscriber Entitlement Control is the Vendor's 
process of permitting Subscribers' access to a market data product.
     Prior to using any Subscriber Entitlement Control or 
changing a previously approved Subscriber Entitlement Control, a 
Vendor must provide the Exchange with a demonstration and a detailed 
written description of the control or change and the Exchange must 
have approved it in writing.
     The Exchange will approve a Subscriber Entitlement 
Control if it allows only authorized, unique end-users or devices to 
access the market data product or monitors access to the market data 
product by each unique end-user or device.
     Vendors must design Subscriber Entitlement Controls to 
produce an audit report and make each audit report available to the 
Exchange upon request. The audit report must identify:
     Each entitlement update to the Subscriber Entitlement 
Control;
     The status of the Subscriber Entitlement Control; and
     Any other changes to the Subscriber Entitlement Control 
over a given period.
     Only the Vendor may have access to Subscriber 
Entitlement Controls.

    Vendors must count every Subscriber Entitlement, whether it be an 
individual person or a device. Thus, the Vendor's count would include 
every person and device that accesses the data regardless of the 
purpose for which the individual or device uses the data.
    Vendors must report all Subscriber Entitlements in accordance with 
the following:
    i. In connection with a Vendor's external distribution of the 
market data product, the Vendor should count as one Subscriber 
Entitlement each unique Subscriber that the Vendor has entitled to have 
access to the market data product. However, where a device is dedicated 
specifically to a single individual, the Vendor should count only the 
individual and need not count the device.
    ii. In connection with a Vendor's internal distribution of a market 
data product, the Vendor should count as one Subscriber Entitlement 
each unique individual (but not devices) that the Vendor has entitled 
to have access to such market data.
    iii. The Vendor should identify and report each unique Subscriber. 
If a Subscriber uses the same unique Subscriber Entitlement to gain 
access to multiple market data services, the Vendor should count that 
as one Subscriber Entitlement. However, if a unique Subscriber uses 
multiple Subscriber Entitlements to gain access to one or more market 
data services (e.g., a single Subscriber has multiple

[[Page 21174]]

passwords and user identifications), the Vendor should report all of 
those Subscriber Entitlements.
    iv. Vendors should report each unique individual person who 
receives access through multiple devices as one Subscriber Entitlement 
so long as each device is dedicated specifically to that individual.
    v. The Vendor should include in the count as one Subscriber 
Entitlement devices serving no entitled individuals. However, if the 
Vendor entitles one or more individuals to use the same device, the 
Vendor should include only the entitled individuals, and not the 
device, in the count.
Proposed Fees for NYSE MKT OpenBook (Excluding Non-Display Fees)
    The Exchange proposes to charge access and subscriber fees for NYSE 
MKT OpenBook, which has been offered for free since 2009. The Exchange 
believes that fees should be charged for the product because the data 
is valuable and there are costs associated with consolidating and 
distributing it. The Exchange will charge a $1,000 per month access 
fee, a $5 per month professional subscriber fee, and a $1 per month 
non-professional subscriber fee. No redistribution fee will be charged. 
This fee structure--with an access fee and differentiated professional 
and non-professional subscriber fees--is similar to the Exchange's fee 
structure for NYSE MKT Trades and NYSE MKT BBO market data products, 
and the proposed fee levels are the same or lower as other exchanges' 
fees for similar products.\10\
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    \10\ See, e.g., NASDAQ Stock Market LLC (``NASDAQ'') Rule 7023.
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    The Exchange proposes to limit the maximum amount of monthly fees 
payable by any broker-dealer for nonprofessional subscribers who 
maintain brokerage accounts with the broker-dealer. Professional 
subscribers may be included in the calculation of the monthly maximum 
amount if:
    (i) Nonprofessional subscribers comprise no less than 90 percent of 
the pool of subscribers that are included in the calculation;
    (ii) Each professional subscriber that is included in the 
calculation is not affiliated with the broker-dealer or any of its 
affiliates (either as an officer, partner, or employee or otherwise); 
and
    (iii) Each such professional subscriber maintains a brokerage 
account directly with the broker-dealer (that is, with the broker-
dealer rather than with a correspondent firm of the broker dealer).\11\
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    \11\ The same criteria are used by NYSE Arca, Inc. (``NYSE 
Arca'') for its equities depth-of-book product. See Securities 
Exchange Act Release No. 63291 (Nov. 9, 2010), 75 FR 70311 (Nov. 17, 
2010) (SR-NYSEArca-2010-97) (``Arca Release'').
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    For 2013, the maximum amount for any calendar month will equal 
$20,000. For the months falling in a subsequent calendar year, the 
maximum monthly payment will increase (but not decrease) by the 
percentage increase (if any) in the annual composite share volume \12\ 
for the calendar year preceding that calendar year, subject to a 
maximum annual increase of five percent.\13\ For example, if the annual 
composite share volume for calendar year 2013 increases by three 
percent over the annual composite share volume for calendar year 2012, 
then the monthly maximum amount for months falling in calendar year 
2014 will increase by three percent to $20,600. The maximum amount is 
the same as the monthly maximum payable to NYSE Arca.\14\
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    \12\ ``Composite share volume'' for a calendar year refers to 
the aggregate number of shares in all securities that trade over 
NYSE MKT facilities for that calendar year.
    \13\ This is the same annual increase calculation that the 
Commission approved for the CTA Monthly Maximum and NYSE Arca's 
ArcaBook monthly maximum. See Securities Act Release No. 34-41977 
(Oct. 5, 1999), 64 FR 55503 (Oct. 13, 1999 (SR-CTA/CQ-99-01) and 
2010 Arca Release, supra n.11, at 70313.
    \14\ See id.
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    Although the Exchange had indicated in 2009 that it would offer the 
NYSE MKT Unit-of-Count Policy for NYSE MKT OpenBook when fees were 
established,\15\ the Exchange has determined not to do so. As a result 
of the changes described below, the Exchange is no longer offering NYSE 
MKT Unit-of-Count Policy for NYSE MKT BBO and NYSE MKT Trades for non-
display usage. As described above, the Exchange expects to amend its 
display usage fees in the near future. Therefore, it would impractical 
to expand the coverage of the NYSE Unit-of-Count Policy at this time.
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    \15\ See OpenBook Release, supra n.4.
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Rationale for New Non-Display Usage Fee Structure
    The Exchange also proposes to establish fees for non-display use of 
NYSE MKT OpenBook, NYSE MKT BBO, and NYSE MKT Trades. As noted in the 
original NYSE Unit-of-Count Policy proposal, ``technology has made it 
increasingly difficult to define `device' and to control who has access 
to devices, [and] the markets have struggled to make device counts 
uniform among their customers.'' \16\ Significant change has 
characterized the industry in recent years, stemming in large measure 
from changes in regulation and technological advances, which has led to 
the rise in automated and algorithmic trading. Additionally, market 
data feeds have become faster and contain a vastly larger number of 
quotes and trades. Today, a majority of trading is done by leveraging 
non-display devices consuming massive amounts of data. Some firms base 
their business models largely on incorporating non-display data into 
applications and do not require widespread data access by the firm's 
employees. Changes in market data consumption patterns have increased 
the use and importance of non-display data.
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    \16\ See Securities Exchange Act Release No. 59544 (Mar. 9, 
2009), 74 FR 11162 (Mar. 16, 2009) (SR-NYSE-2008-131). At least one 
other Exchange also has noted such administrative challenges. In 
establishing a non-display usage fee for internal distributors of 
TotalView and OpenView, NASDAQ noted that as ``the number of devices 
increase, so does the administrative burden on the end customer of 
counting these devices.'' See Securities Exchange Act Release No. 
61700 (Mar. 12, 2010), 75 FR 13172 (Mar. 18, 2010) (SR-NASDAQ-2010-
034).
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    Applications that can be used in non-display devices provide added 
value in their capability to manipulate and spread the data they 
consume. Such applications have the ability to perform calculations on 
the live data stream and manufacture new data out of it. Data can be 
processed much faster by a non-display device than it can be by a human 
being processing information that he or she views on a data terminal. 
Non-display devices also can dispense data to multiple computer 
applications as compared with the restriction of data to one display 
terminal.
    While the non-display data has become increasingly valuable to data 
recipients who can use it to generate substantial profits, it has 
become increasing difficult for them and the Exchange to accurately 
count non-display devices. The number and type of non-display devices, 
as well as their complexity and interconnectedness, have grown in 
recent years, creating administrative challenges for vendors, data 
recipients, and the Exchange to accurately count such devices and audit 
such counts. Unlike a display device, such as a Bloomberg terminal, it 
is not possible to simply walk through a trading floor or areas of a 
data recipient's premises to identify non-display devices. During an 
audit, an auditor must review a firm's entitlement report to determine 
usage. While display use is generally associated with an individual end 
user and/or unique user ID, a non-display use is more difficult to 
account for because the entitlement report may show a server name or 
Internet protocol (``IP'') address or it may not. The auditor must 
review

[[Page 21175]]

each IP or server and further inquire about downstream use and quantity 
of servers with access to data; this type of counting is very labor-
intensive and prone to inaccuracies.
    For these reasons, the Exchange determined that its current fee 
structure, which is based on counting non-display devices, is no longer 
appropriate in light of market and technology developments and does not 
reflect the value of the non-display data and its many profit-
generating uses for subscribers. As such, the Exchange, in conjunction 
with its domestic and foreign affiliate exchanges, undertook a review 
of its market data policies with a goal of bringing greater consistency 
and clarity to its fee structure; easing administration for itself, 
vendors, and subscribers; and setting fees at a level that better 
reflects the current value of the data provided. As a result of this 
review, the Exchange has determined to implement a new fee structure 
for display and non-display use of certain market data products. 
Initially, the Exchange will implement the new non-display use fee 
structure for NYSE MKT OpenBook, NYSE MKT BBO, and NYSE MKT Trades, 
operative on April 1, 2013. The Exchange anticipates implementing a new 
display use fee structure later this year; until such time, existing 
fees for display use will apply.
Proposed Non-Display Usage Fees
    The Exchange proposes to establish new monthly fees for non-display 
usage, which for purposes of the proposed fee structure will mean 
accessing, processing or consuming an NYSE MKT data product delivered 
via direct and/or Redistributor \17\ data feeds, for a purpose other 
than in support of its display or further internal or external 
redistribution. The proposed non-display fees will apply to the non-
display use of the data product as part of automated calculations or 
algorithms to support trading decision-making processes or the 
operation of trading platforms (``Non-Display Trading Activities''). 
They include, but are not limited to, high frequency trading, automated 
order or quote generation and/or order pegging, or price referencing 
for the purposes of algorithmic trading and/or smart order routing. 
Applications and devices that solely facilitate display, internal 
distribution, or redistribution of the data product with no other uses 
and applications that use the data product for other non-trading 
activities, such as the creation of derived data, quantitative 
analysis, fund administration, portfolio management, and compliance, 
are not covered by the proposed non-display fee structure and are 
subject to the current standard per-device fee structure. The Exchange 
reserves the right to audit data recipients' use of NYSE MKT market 
data products in Non-Display Trading Activities in accordance with NYSE 
MKT's vendor and subscriber agreements.
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    \17\ ``Redistributor'' means a vendor or any other person that 
provides an NYSE MKT data product to a data recipient or to any 
system that a data recipient uses, irrespective of the means of 
transmission or access.
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    There will be two types of fees, which are described below. The 
first type of fee is for internal non-display use. The second type of 
fee is for managed non-display services. The current NYSE MKT Unit-of-
Count Policy will no longer apply to any non-display usage for NYSE MKT 
BBO and NYSE MKT Trades.\18\
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    \18\ Existing customers that are approved for the NYSE MKT Unit-
of-Count Policy for NYSE MKT BBO and NYSE MKT Trades display usage 
may continue to follow that Policy until the new display fees are 
implemented.
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Proposed Fees for Internal Non-Display Use
    The proposed internal non-display use fees will apply to NYSE MKT 
OpenBook, NYSE MKT BBO, and NYSE MKT Trades. Internal non-display use 
occurs when a data recipient either manages its own non-display 
infrastructure and controls the access to and permissioning of the 
market data product on its non-display applications or when the data 
recipient's non-display applications are hosted by a third party that 
has not been approved to provide the managed non-display services as 
described below.
    The fee structure will have three categories, which recognize the 
different uses for the market data. Category 1 Fees apply where a data 
recipient's non-display use of real time market data is for the purpose 
of principal trading. Category 2 Fees apply where a data recipient's 
non-display use of market data is for the purpose of broker/agency 
trading, i.e., trading-based activities to facilitate the recipient's 
customers' business. If a data recipient trades both on a principal and 
agency basis, then the data recipient must pay both categories of fees. 
Category 3 Fees apply where a data recipient's non-display use of 
market data is, in whole or in part, for the purpose of providing 
reference prices in the operation of one or more trading platforms, 
including but not limited to multilateral trading facilities, 
alternative trading systems, broker crossing networks, dark pools, and 
systematic internalization systems. A data recipient will not be liable 
for Category 3 Fees for those market data products for which it is also 
paying Category 1 and/or Category 2 Fees.
    The fees for internal non-display use per data recipient 
organization for each category will be as follows:

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                                                                    Category 1      Category 2      Category 3
                                                                    Trading as      Trading as        Trading
                             Product                              Principal (per   Broker/Agency   Platform (per
                                                                      month)        (per month)       month)
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NYSE MKT OpenBook...............................................          $1,500          $1,500          $1,500
NYSE MKT BBO....................................................             500             500             500
NYSE MKT Trades.................................................           1,000           1,000           1,000
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    For internal non-display use, there will be no reporting 
requirements regarding non-display device counts, thus doing away with 
the administrative burdens described above. Data recipients will be 
required to declare the market data products used within their non-
display trading applications by executing an NYSE Euronext Non-Display 
Usage Declaration.
Proposed Fees for Managed Non-Display Services
    The Exchange also proposes to establish fees for managed non-
display services for NYSE MKT OpenBook and NYSE MKT Trades. Under the 
managed non-display service, a data recipient's non-display 
applications must be hosted by a Redistributor approved by the 
Exchange, and this Redistributor must manage and control the access to 
NYSE MKT OpenBook and/or NYSE MKT Trades for these applications and may

[[Page 21176]]

not allow for further internal distribution or external redistribution 
of these market data products. The Redistributor of the managed non-
display services and the data recipient must be approved under the 
current NYSE MKT Unit-of-Count Policy described above,\19\ which will 
no longer be available for non-display use after the proposed fees are 
implemented. If a data recipient is receiving NYSE MKT OpenBook or NYSE 
MKT Trades for Non-Display Trading Activities from a Redistributor that 
is not approved under the NYSE MKT Unit-of-Count Policy, then the 
internal non-display fees described above will apply.
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    \19\ See supra n.9. The Redistributor and data recipient will 
qualify if they are approved for NYSE MKT Unit-of-Count Policy for 
any NYSE MKT market data product. The products that are currently 
approved for NYSE MKT Unit-of-Count Policy are NYSE MKT Trades and 
NYSE MKT BBO.
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    The fees for managed non-display services per data recipient 
organization will be as follows:

------------------------------------------------------------------------
                                                 Managed Non-Display Use
                    Product                          Fee (per month)
------------------------------------------------------------------------
NYSE MKT OpenBook..............................                     $500
NYSE MKT Trades................................                     $400
------------------------------------------------------------------------

    Data recipients will not be liable for managed non-display fees for 
those market data products for which they pay the internal non-display 
fee.
    Upon request, Redistributor offering managed non-display services 
must provide the Exchange with a list of data recipients that are 
receiving NYSE MKT OpenBook or NYSE MKT Trades through the 
Redistributor's managed non-display service. Data recipients of the 
managed non-display service have no additional reporting requirements, 
thus easing the administrative burdens described above.
Examples
    Broker-Dealer A obtains NYSE MKT Trades directly from the Exchange 
for internal use and does not fall under the NYSE MKT Unit-of-Count 
Policy. Broker-Dealer A trades both on a principal and agency basis and 
has (i) 80 individual persons who use 100 display devices and (ii) 50 
non-display devices.
     Under the current fee schedule, Broker-Dealer A pays the 
Exchange the $750 access fee plus $10 for each of the 100 display 
devices (although 80 individual persons use them, the number of devices 
is counted), or $1,000, and $10 for each of the 50 non-display devices, 
or $500, for a total of $2,250 per month.
     Under the proposed fee schedule, Broker-Dealer A would pay 
the Exchange the $750 access fee plus $10 for each of the 100 display 
devices, or $1,000, and Category 1 and Category 2 fees for internal 
non-display use, or $2,000, for a total of $3,750 per month. No 
redistribution fee would be charged.
    Broker-Dealer B, which only trades as principal, obtains NYSE MKT 
Trades from Vendor X. Broker-Dealer B and Vendor X are both approved 
for the NYSE MKT Unit-of-Count Policy. Broker-Dealer B has (i) 10 
individual persons who use 12 display devices and (ii) 5 non-display 
devices.
     Under the current fee schedule, Vendor X pays the $750 
access fee and Broker-Dealer B pays $150 ($10 for the 10 individual 
persons (under the NYSE MKT Unit-of-Count Policy, the larger number of 
display devices is not counted), or $100, plus $10 for each of the 5 
non-display devices, or $50).
     Under the proposed fee schedule, Broker-Dealer B would pay 
$100 as it does today for its individual persons using display devices, 
and $400 for managed non-display use, for a total of $500 per month in 
fees. Vendor X would pay the $750 access fee.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\20\ in general, and 
Sections 6(b)(4) and 6(b)(5) of the Act,\21\ in particular, in that it 
provides an equitable allocation of reasonable fees among users and 
recipients of the data and is not designed to permit unfair 
discrimination among customers, issuers, and brokers.
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    \20\ 15 U.S.C. 78f(b).
    \21\ 15 U.S.C. 78f(b)(4), (5).
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    The Exchange believes that the proposed fees for NYSE MKT OpenBook 
are reasonable, equitable, and not unfairly discriminatory. The 
Exchange believes that the fees for the OpenBook equity data feed are 
reasonable because, as described above, they are less than or 
equivalent to the fees charged by other exchanges for comparable data. 
Moreover, the Exchange has offered the OpenBook data feed for free 
since 2009, and it is reasonable and equitable for the Exchange to 
begin charging fees in light of the value of the data and the costs 
associated with consolidating and distributing it. The Exchange also 
believes that the fees are equitable and not unfairly discriminatory 
because the fee structure of access and professional and 
nonprofessional subscriber fees is substantially the same as the fee 
structure used by the Exchange for other products, the other exchanges, 
and the CTA and CQ Plans.
    As described in detail in the section ``Rationale for New Non-
Display Usage Fee Structure'' above, which is incorporated by reference 
herein, technology has made it increasingly difficult to define 
``device'' and to control who has access to devices. Significant change 
has characterized the industry in recent years, stemming in large 
measure from changes in regulation and technological advances, which 
has led to the rise in automated and algorithmic trading, which have 
the potential to generate substantial profits. Indeed, data used in a 
single non-display device running a single trading algorithm can 
generate large profits. Market data technology and usage has evolved to 
the point where it is no longer practical, nor fair and equitable, to 
simply count non-display devices. The administrative costs and 
difficulties of establishing reliable counts and conducting an 
effective audit of non-display devices have become too burdensome, 
impractical, and non-economic for the Exchange, vendors, and data 
recipients. Rather, the Exchange believes that its proposed flat fee 
structure for non-display use is reasonable, equitable, and not 
unfairly discriminatory in light of these developments.
    Other exchanges also have established differentiated fees based on 
non-display usage, including a flat or enterprise fee. For example, 
NASDAQ professional subscribers pay monthly fees for non-display usage 
based upon direct access to NASDAQ Level 2, NASDAQ TotalView, or NASDAQ 
OpenView, which range from $300 per month for customers with one to 10 
subscribers to $75,000 for customers with 250 or more subscribers.\22\ 
In addition, NASDAQ OMX PHLX, Inc. (``Phlx'') offers an alternative 
$10,000 per month ``Non-Display Enterprise License'' fee that permits 
distribution to an unlimited number of internal non-display subscribers 
without incurring additional fees for each internal subscriber.\23\ The 
Non-Display Enterprise License covers non-display subscriber fees for 
all Phlx proprietary direct data feed products and is in addition to 
any other associated distributor fees for Phlx proprietary direct data 
feed products. NASDAQ OMX BX, Inc. (``BX'') also offers an alternative 
non-display usage fee of $16,000 for its BX TotalView data

[[Page 21177]]

feed.\24\ NASDAQ and Phlx also both offer managed non-display data 
solutions at higher overall fees than the Exchange proposes to 
charge.\25\
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    \22\ See NASDAQ Rule 7023(b)(4).
    \23\ See Securities Exchange Act Release No. 68576 (Jan. 3, 
2013), 78 FR 1886 (Jan. 9, 2013) (SR-Phlx-2012-145). Alternatively, 
Phlx charges each professional subscriber $40 per month.
    \24\ See NASDAQ OMX BX Rule 7023(a)(2). Alternatively, BX 
charges each professional subscriber $40 per month.
    \25\ NASDAQ established fees for a Managed Data Solution to 
Distributors, which includes a monthly Managed Data Solution 
Administration fee of $1,500 and monthly Subscriber fees ranging 
from $60 to $300. See NASDAQ Rule 7026(b). Phlx also established a 
Managed Data Solution, which includes a monthly Managed Data 
Solution Administration fee of $1,500 and a monthly Subscriber fee 
of $250. The monthly License fee is in addition to Phlx's monthly 
Distributor fee of $2,500 (for external usage), and the $250 monthly 
Subscriber fee is assessed for each Subscriber of a Managed Data 
Solution. See Securities Exchange Act Release No. 67466 (July 19, 
2012), 77 FR 43629 (July 25, 2012) (SR-Phlx-2012-93).
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    The Exchange also believes that it is reasonable, equitable, and 
not unfairly discriminatory to charge relatively lower fees for managed 
non-display services because the Exchange expects that they will 
generally be used by a small number of Redistributors and data 
recipients that are currently eligible for the NYSE MKT Unit-of-Count 
Policy. These data recipients are constrained by whatever applications 
are available via Redistributors operating in the Exchange's co-
location center and other hosted facilities. In comparison, a data 
recipient that elects internal non-display use is free to use the data 
in any manner it chooses and create new uses in an unlimited number of 
non-display devices. The lack of constraint in this regard will make 
the non-display usage of the data more valuable to such an internal use 
data recipient.
    The Exchange has not raised the market data fees for NYSE MKT BBO 
and NYSE MKT Trades since June 2010.\26\ The Exchange has made NYSE MKT 
OpenBook available for free to date. The Exchange believes that the new 
fee schedule, which may result in certain vendors and data recipients 
paying more than they have in the last several years, is fair and 
reasonable in light of market and technology developments. The current 
per-device fee structure no longer reflects the significant overall 
value that non-display data can provide in trading algorithms and other 
uses that provide professional users with the potential to generate 
substantial profits. The Exchange believes that it is equitable and not 
unfairly discriminatory to establish an overall monthly fee that better 
reflects the value of the data to the data recipients in their profit-
generating activities and does away with the costs and administrative 
burdens of counting non-display devices.
---------------------------------------------------------------------------

    \26\ See supra n.5.
---------------------------------------------------------------------------

    The Exchange also notes that products described herein are entirely 
optional. Firms are not required to purchase NYSE MKT OpenBook, NYSE 
MKT BBO, or NYSE MKT Trades. Firms have a wide variety of alternative 
market data products from which to choose.\27\ Moreover, the Exchange 
is not required to make these proprietary data products available or to 
offer any specific pricing alternatives to any customers.
---------------------------------------------------------------------------

    \27\ See supra nn.22-25.
---------------------------------------------------------------------------

    The decision of the United States Court of Appeals for the District 
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (DC Cir. 
2010), upheld reliance by the Securities and Exchange Commission 
(``Commission'') upon the existence of competitive market mechanisms to 
set reasonable and equitably allocated fees for proprietary market 
data:

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

Id. at 535 (quoting H.R. Rep. No. 94-229 at 92 (1975), as reprinted in 
1975 U.S.C.C.A.N. 323). The court agreed with the Commission's 
conclusion that ``Congress intended that `competitive forces should 
dictate the services and practices that constitute the U.S. national 
market system for trading equity securities.' '' \28\
---------------------------------------------------------------------------

    \28\ NetCoalition, 615 F.3d at 535.
---------------------------------------------------------------------------

    As explained below in the Exchange's Statement on Burden on 
Competition, the Exchange believes that there is substantial evidence 
of competition in the marketplace for data and that the Commission can 
rely upon such evidence in concluding that the fees established in this 
filing are the product of competition and therefore satisfy the 
relevant statutory standards.\29\ In addition, the existence of 
alternatives to these data products, such as proprietary last sale data 
from other sources, as described below, further ensures that the 
Exchange cannot set unreasonable fees, or fees that are unreasonably 
discriminatory, when vendors and subscribers can elect such 
alternatives.
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    \29\ Section 916 of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010 (the ``Dodd-Frank Act'') amended 
paragraph (A) of Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3), 
to make clear that all exchange fees for market data may be filed by 
exchanges on an immediately effective basis.
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    As the NetCoalition decision noted, the Commission is not required 
to undertake a cost-of-service or ratemaking approach, and the Exchange 
incorporates by reference into this proposed rule change its 
affiliate's analysis of this topic in another rule filing.\30\
---------------------------------------------------------------------------

    \30\ See Securities Exchange Act Release No. 63291 (Nov. 9, 
2010), 75 FR 70311 (Nov. 17, 2010) (SR-NYSEArca-2010-97).
---------------------------------------------------------------------------

    For these reasons, the Exchange believes that the proposed fees are 
reasonable, equitable, and not unfairly discriminatory.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. An exchange's ability to 
price its proprietary data feed products is constrained by actual 
competition for the sale of proprietary market data products, the joint 
product nature of exchange platforms, and the existence of alternatives 
to the Exchange's proprietary last sale data.
    The Existence of Actual Competition. The market for proprietary 
data products is currently competitive and inherently contestable 
because there is fierce competition for the inputs necessary to the 
creation of proprietary data and strict pricing discipline for the 
proprietary products themselves. Numerous exchanges compete with each 
other for listings and order flow and sales of market data itself, 
providing virtually limitless opportunities for entrepreneurs who wish 
to compete in any or all of those areas, including producing and 
distributing their own market data. Proprietary data products are 
produced and distributed by each individual exchange, as well as other 
entities, in a vigorously competitive market.
    Competitive markets for listings, order flow, executions, and 
transaction reports provide pricing discipline for the inputs of 
proprietary data products and therefore constrain markets from 
overpricing proprietary market data. The U.S. Department of Justice 
also has acknowledged the aggressive competition among exchanges, 
including for the sale of proprietary market data itself. In announcing 
that the bid for NYSE Euronext by NASDAQ OMX Group Inc. and 
IntercontinentalExchange Inc. had been abandoned, Assistant Attorney 
General Christine Varney stated that exchanges ``compete head to head 
to offer real-time equity data products. These data products include 
the best bid and offer

[[Page 21178]]

of every exchange and information on each equity trade, including the 
last sale.'' \31\
---------------------------------------------------------------------------

    \31\ Press Release, U.S. Department of Justice, Assistant 
Attorney General Christine Varney Holds Conference Call Regarding 
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning 
Their Bid for NYSE Euronext (May 16, 2011), available at http://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html.
---------------------------------------------------------------------------

    It is common for broker-dealers to further exploit this recognized 
competitive constraint by sending their order flow and transaction 
reports to multiple markets, rather than providing them all to a single 
market. As a 2010 Commission Concept Release noted, the ``current 
market structure can be described as dispersed and complex'' with 
``trading volume * * * dispersed among many highly automated trading 
centers that compete for order flow in the same stocks'' and ``trading 
centers offer[ing] a wide range of services that are designed to 
attract different types of market participants with varying trading 
needs.'' \32\
---------------------------------------------------------------------------

    \32\ Concept Release on Equity Market Structure, Securities 
Exchange Act Release No. 61358 (Jan. 14, 2010), 75 FR 3594 (Jan. 21, 
2010) (File No. S7-02-10). This Concept Release included data from 
the third quarter of 2009 showing that no market center traded more 
than 20% of the volume of listed stocks, further evidencing the 
dispersal of and competition for trading activity. Id. at 3598.
---------------------------------------------------------------------------

    In addition, in the case of products that are distributed through 
market data vendors, the market data vendors themselves provide 
additional price discipline for proprietary data products because they 
control the primary means of access to certain end users. These vendors 
impose price discipline based upon their business models. For example, 
vendors that assess a surcharge on data they sell are able to refuse to 
offer proprietary products that their end users do not or will not 
purchase in sufficient numbers. Internet portals, such as Google, 
impose price discipline by providing only data that they believe will 
enable them to attract ``eyeballs'' that contribute to their 
advertising revenue. Similarly, vendors will not elect to make 
available the NYSE MKT products described herein unless their customers 
request them, and customers will not elect to purchase them unless they 
can be used for profit-generating purposes. All of these operate as 
constraints on pricing proprietary data products.
    Joint Product Nature of Exchange Platform. Transaction execution 
and proprietary data products are complementary in that market data is 
both an input and a byproduct of the execution service. In fact, market 
data and trade executions are a paradigmatic example of joint products 
with joint costs. The decision whether and on which platform to post an 
order will depend on the attributes of the platforms where the order 
can be posted, including the execution fees, data quality, and price 
and distribution of their data products. The more trade executions a 
platform does, the more valuable its market data products become.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs. Moreover, an exchange's broker-
dealer customers view the costs of transaction executions and market 
data as a unified cost of doing business with the exchange.
    Other market participants have noted that the liquidity provided by 
the order book, trade execution, core market data, and non-core market 
data are joint products of a joint platform and have common costs.\33\ 
The Exchange agrees with and adopts those discussions and the arguments 
therein. The Exchange also notes that the economics literature confirms 
that there is no way to allocate common costs between joint products 
that would shed any light on competitive or efficient pricing.\34\
---------------------------------------------------------------------------

    \33\ See Securities Exchange Act Release No. 62887 (Sept. 10, 
2010), 75 FR 57092, 57095 (Sept. 17, 2010) (SR-Phlx-2010-121); 
Securities Exchange Act Release No. 62907 (Sept. 14, 2010), 75 FR 
57314, 57317 (Sept. 20, 2010) (SR-NASDAQ-2010-110); and Securities 
Exchange Act Release No. 62908 (Sept. 14, 2010), 75 FR 57321, 57324 
(Sept. 20, 2010) (SR-NASDAQ-2010-111) (``all of the exchange's costs 
are incurred for the unified purposes of attracting order flow, 
executing and/or routing orders, and generating and selling data 
about market activity. The total return that an exchange earns 
reflects the revenues it receives from the joint products and the 
total costs of the joint products.''); see also August 1, 2008 
Comment Letter of Jeffrey S. Davis, Vice President and Deputy 
General Counsel, NASDAQ OMX Group, Inc., Statement of Janusz Ordover 
and Gustavo Bamberger (``because market data is both an input to and 
a byproduct of executing trades on a particular platform, market 
data and trade execution services are an example of `joint products' 
with `joint costs.' ''), attachment at pg. 4, available at 
www.sec.gov/comments/34-57917/3457917-12.pdf.
    \34\ See generally Mark Hirschey, Fundamentals of Managerial 
Economics, at 600 (2009) (``It is important to note, however, that 
although it is possible to determine the separate marginal costs of 
goods produced in variable proportions, it is impossible to 
determine their individual average costs. This is because common 
costs are expenses necessary for manufacture of a joint product. 
Common costs of production--raw material and equipment costs, 
management expenses, and other overhead--cannot be allocated to each 
individual by-product on any economically sound basis. * * * Any 
allocation of common costs is wrong and arbitrary.''). This is not 
new economic theory. See, e.g., F. W. Taussig, ``A Contribution to 
the Theory of Railway Rates,'' Quarterly Journal of Economics V(4) 
438, 465 (July 1891) (``Yet, surely, the division is purely 
arbitrary. These items of cost, in fact, are jointly incurred for 
both sorts of traffic; and I cannot share the hope entertained by 
the statistician of the Commission, Professor Henry C. Adams, that 
we shall ever reach a mode of apportionment that will lead to 
trustworthy results.'').
---------------------------------------------------------------------------

    Analyzing the cost of market data product production and 
distribution in isolation from the cost of all of the inputs supporting 
the creation of market data and market data products will inevitably 
underestimate the cost of the data and data products. Thus, because it 
is impossible to obtain the data inputs to create market data products 
without a fast, technologically robust, and well-regulated execution 
system, system costs and regulatory costs affect the price of both 
obtaining the market data itself and creating and distributing market 
data products. It would be equally misleading, however, to attribute 
all of an exchange's costs to the market data portion of an exchange's 
joint products. Rather, all of an exchange's costs are incurred for the 
unified purposes of attracting order flow, executing and/or routing 
orders, and generating and selling data about market activity. The 
total return that an exchange earns reflects the revenues it receives 
from the joint products and the total costs of the joint products.
    The level of competition and contestability in the market is 
evident in the numerous alternative venues that compete for order flow, 
including 12 equities self-regulatory organization (``SRO'') markets, 
as well as internalizing broker-dealers (``BDs'') and various forms of 
alternative trading systems (``ATSs''), including dark pools and 
electronic communication networks (``ECNs''). Competition among trading 
platforms can be expected to constrain the aggregate return that each 
platform earns from the sale of its joint products, but different 
platforms may choose from a range of possible, and equally reasonable, 
pricing strategies as the means of recovering total costs. For example, 
some platforms may choose to pay rebates to attract orders, charge 
relatively low prices for market data products (or provide market data 
products free of charge), and charge relatively high prices for 
accessing posted liquidity. Other platforms may choose a strategy of 
paying lower rebates (or no rebates) to attract orders, setting 
relatively high prices for market data products, and setting relatively 
low prices for accessing posted liquidity. In

[[Page 21179]]

this environment, there is no economic basis for regulating maximum 
prices for one of the joint products in an industry in which suppliers 
face competitive constraints with regard to the joint offering.
    Existence of Alternatives. The large number of SROs, BDs, and ATSs 
that currently produce proprietary data or are currently capable of 
producing it provides further pricing discipline for proprietary data 
products. Each SRO, ATS, and BD is currently permitted to produce 
proprietary data products, and many currently do or have announced 
plans to do so, including but not limited to the Exchange, NYSE, NYSE 
Arca, NASDAQ OMX, BATS, and Direct Edge.
    The fact that proprietary data from ATSs, BDs, and vendors can 
bypass SROs is significant in two respects. First, non-SROs can compete 
directly with SROs for the production and sale of proprietary data 
products. Second, because a single order or transaction report can 
appear in an SRO proprietary product, a non-SRO proprietary product, or 
both, the amount of data available via proprietary products is greater 
in size than the actual number of orders and transaction reports that 
exist in the marketplace. Because market data users can thus find 
suitable substitutes for most proprietary market data products,\35\ a 
market that overprices its market data products stands a high risk that 
users may substitute another source of market data information for its 
own.
---------------------------------------------------------------------------

    \35\ See supra n.22-25.
---------------------------------------------------------------------------

    Those competitive pressures imposed by available alternatives are 
evident in the Exchange's proposed pricing. As noted above, the 
proposed non-display fees for NYSE MKT OpenBook, NYSE MKT Trades, and 
NYSE MKT BBO are generally lower than the maximum non-display fees 
charged by other exchanges such as NASDAQ, Phlx, and BX for comparable 
products.\36\ The proposed NYSE MKT OpenBook access and subscriber fees 
are same or lower than other exchanges' comparable fees.\37\
---------------------------------------------------------------------------

    \36\ Id.
    \37\ See supra nn.10, 13.
---------------------------------------------------------------------------

    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid and inexpensive. The history 
of electronic trading is replete with examples of entrants that swiftly 
grew into some of the largest electronic trading platforms and 
proprietary data producers: Archipelago, Bloomberg Tradebook, Island, 
RediBook, Attain, TrackECN, BATS, and Direct Edge. Today, BATS and 
Direct Edge provide certain market data at no charge on their Web sites 
in order to attract more order flow, and use revenue rebates from 
resulting additional executions to maintain low execution charges for 
their users.\38\
---------------------------------------------------------------------------

    \38\ This is simply a securities market-specific example of the 
well-established principle that in certain circumstances more sales 
at lower margins can be more profitable than fewer sales at higher 
margins; this example is additional evidence that market data is an 
inherent part of a market's joint platform.
---------------------------------------------------------------------------

    Further, data products are valuable to certain end users only 
insofar as they provide information that end users expect will assist 
them or their customers. The Exchange believes the proposed non-display 
fees will benefit customers by providing them with a clearer way to 
determine their fee liability for non-display devices, and with respect 
to internal use, to obviate the need to count such devices.
    In establishing the proposed fees, the Exchange considered the 
competitiveness of the market for proprietary data and all of the 
implications of that competition. The Exchange believes that it has 
considered all relevant factors and has not considered irrelevant 
factors in order to establish fair, reasonable, and not unreasonably 
discriminatory fees and an equitable allocation of fees among all 
users. The existence of numerous alternatives to the Exchange's 
products, including proprietary data from other sources, ensures that 
the Exchange cannot set unreasonable fees, or fees that are 
unreasonably discriminatory, when vendors and subscribers can elect 
these alternatives or choose not to purchase a specific proprietary 
data product if its cost to purchase is not justified by the returns 
any particular vendor or subscriber would achieve through the purchase.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange published draft Data Policies on its Web site on 
November 20, 2012. Among other things, the Data Policies addressed non-
display use for certain market data products. The Exchange solicited 
comments on the Data Policies in the form of a survey. The Exchange 
received 14 comments relating to non-display use. Exhibit 2 contains a 
copy of the notice soliciting comment, the Data Policies, the 14 
comments received in alphabetical order, and an alphabetical listing of 
such comments.
    Nine commenters \39\ requested greater clarity with respect to the 
definition and examples of non-display use. Specifically, the 
commenters requested that the Exchange provide a consistent definition 
of non-display use. As described above, the definition of non-display 
use will be accessing, processing or consuming an NYSE MKT data product 
delivered via direct and/or Redistributor data feeds, for a purpose 
other than in support of its display or further internal or external 
redistribution. The Exchange believes that this definition addresses 
the comments and will clearly describe the types of activities that 
will qualify for the proposed fee. The Exchange also provided examples 
for illustrative purposes, which are not exclusive.
---------------------------------------------------------------------------

    \39\ Barclays, Brown Brothers Harriman, CMC Markets, Deutsche 
Bank, Flowtraders, Nomura, Threadneedle, Transtrend BV, and UBS.
---------------------------------------------------------------------------

    Four commenters \40\ also questioned whether price referencing, 
compliance, accounting or auditing activities, and derived data should 
be considered non-display use. The Data Policies listed price 
referencing, compliance, accounting or auditing activities, and derived 
data as examples of non-display usage; however, as discussed above, the 
Exchange has determined that price referencing for the purposes of 
algorithmic trading and/or smart order routing would be considered Non-
Display Trading Activities, and applications that use the data product 
for non-trading activities, such as compliance, accounting or auditing 
activities, and derived data are not covered by the non-display fees 
and are subject to the current standard per-device fee structure.
---------------------------------------------------------------------------

    \40\ Barclays, CMC Markets, Transtrend BV, and UBS.
---------------------------------------------------------------------------

    Three commenters \41\ requested clarity on the NYSE MKT Unit-of-
Count Policy for non-display use. As discussed above, the NYSE MKT 
Unit-of-Count Policy will continue to apply to Redistributors and 
customers that have been approved under the NYSE MKT Unit-of-Count 
Policy. Under the proposed rule change, the pricing structure for 
display usage will remain the same. However, for non-display usage, 
customers approved under the NYSE MKT Unit-of-Count Policy will be 
eligible for the managed non-display services at the managed non-
display fee, which is offered either directly from the Exchange or 
through a Redistributor.
---------------------------------------------------------------------------

    \41\ Barclays, Essex Radez LLC, and UBS.
---------------------------------------------------------------------------

    Two commenters \42\ asked for more detail on the managed non-
display

[[Page 21180]]

service, which the Exchange has provided above.
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    \42\ FXCM and RTS Group.
---------------------------------------------------------------------------

    Three commenters \43\ asked for examples of how the Exchange would 
charge for customers that use both display and non-display devices. The 
Exchange believes that the pricing examples provided above are 
responsive to this request.
---------------------------------------------------------------------------

    \43\ Essex Radez LLC, Fidelity Market Data, and Lloyds TSB Bank 
plc.
---------------------------------------------------------------------------

    One commenter \44\ stated that the proposed fees are excessive. The 
Exchange believes that the proposed fees are reasonable, equitable, and 
not unfairly discriminatory for the reasons discussed in Section 3(b) 
above.
---------------------------------------------------------------------------

    \44\ Essex Radez LLC.
---------------------------------------------------------------------------

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) \45\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \46\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \45\ 15 U.S.C. 78s(b)(3)(A).
    \46\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    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. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \47\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \47\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-2013-32 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-2013-32. 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-2013-32 and should 
be submitted on or before April 30, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\48\
Kevin M. O'Neill,
Deputy Secretary.
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    \48\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2013-08176 Filed 4-8-13; 8:45 am]
BILLING CODE 8011-01-P