[Federal Register Volume 78, Number 243 (Wednesday, December 18, 2013)]
[Notices]
[Pages 76685-76689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30045]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71061; File No. SR-EDGA-2013-36]


Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
EDGA Rule 11.12, Limitations of Liability

December 12, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on December 6, 2013, EDGA Exchange, Inc. (the ``Exchange'' or 
``EDGA'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the 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\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend paragraph (d)(3) of Rule 11.12 to 
provide Members \3\ with additional time within which to submit a 
written claim for compensation for ``losses resulting directly from the 
malfunction of the Exchange's physical equipment, devices and/or 
programming or the negligent acts or omissions of its employees'' 
(``Exchange Systems Issues'').
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    \3\ The term ``Member'' is defined as ``any registered broker or 
dealer, or any person associated with a registered broker or dealer, 
that has been admitted to membership in the Exchange. A Member will 
have the status of a ``member'' of the Exchange as that term is 
defined in Section 3(a)(3) of the Act.'' See Exchange Rule 1.5(n).
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    In addition, the Exchange proposes to add a new paragraph (e) to 
Rule 11.12 to permit the Exchange, subject to certain conditions and 
limitations, to compensate Members for certain losses incurred in 
connection with orders or portions of orders routed by the Exchange 
through its affiliated routing broker-dealer, Direct Edge ECN LLC (d/b/
a/DE Route) (``DE Route''), to Trading Centers \4\ where such losses 
are claimed by the Member to have resulted directly from a malfunction 
of the physical equipment, devices and/or programming, or the negligent 
acts or omissions of the employees, of such Trading Centers (``Trading 
Center Systems Issue'').
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    \4\ Rule 600(b)(78) of Regulation NMS, 17 CFR 242.600(b)(78), 
defines a ``Trading Center'' as ``a national securities exchange or 
national securities association that operates an SRO trading 
facility, an alternative trading system, an exchange market maker, 
an OTC market maker, or any other broker or dealer that executes 
orders internally by trading as principal or crossing orders as 
agent.'' See also Exchange Rule 2.11(a).
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    All of the changes described herein are applicable to Members.\5\ 
The text of the proposed rule change is available on the Exchange's 
Internet Web site at www.directedge.com, at the Exchange's principal 
office, and at the Public Reference Room of the Commission.
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    \5\ A Member is any registered broker or dealer, or any person 
associated with a registered broker or dealer that has been admitted 
to membership in the Exchange.
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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 these statements may be examined at 
the places specified in Item IV below. The self-regulatory organization 
has prepared summaries, set forth in sections A, B and C below, of the 
most significant aspects of such statements.

[[Page 76686]]

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 11.12 to: (i) Amend paragraph 
(d)(3) to provide Members with additional time within which to submit a 
written claim for compensation for Exchange Systems Issues; and (ii) 
add a new paragraph (e) permitting the Exchange, subject to certain 
conditions and limitations, to compensate Members for certain losses 
incurred in connection with orders or portions of orders routed by the 
Exchange through DE Route to Trading Centers where such losses are 
claimed by the Member to have resulted directly from a Trading Center 
Systems Issue.
Extension of Deadline To Submit Claims
    Rule 11.12 currently states that, except as provided in subsection 
(d) of the Rule, the Exchange and its affiliates shall not be liable 
for any losses, damages, or other claims arising out of the Exchange or 
its use. Exchange Rule 11.12(d) provides a limited exception to its 
general limitation of liability that allows for the payment of 
compensation to Members for Exchange Systems Issues, subject to certain 
conditions. Subsection (d)(1) of Rule 11.12 states that for the 
aggregate of all claims made by all market participants related to the 
use of the Exchange during a single calendar month, the Exchange's 
payments under Rule 11.12 shall not exceed the larger of $500,000, or 
the amount of the recovery obtained by the Exchange under any 
applicable insurance policy.
    Currently, Rule 11.12(d)(3) requires Members to submit claims for 
compensation to the Exchange by 12:00 p.m. Eastern Time on the business 
day following the day on which the Member's use of the Exchange gave 
rise to the claim. The Exchange proposes to extend the deadline to 
submit a claim to no later than 4:00 p.m. Eastern Time, or 1:00 p.m. in 
the event of an early market close,\6\ on the second business day 
following the day on which the Member's use of the Exchange gave rise 
to the claim. The Exchange believes that such expansion of time is 
reasonable given that Members often do not have all the necessary 
information to substantiate all facts bearing on the accuracy and 
completeness of a claim within the required current timeframe under 
Rule 11.12(d). The expansion of time to submit compensation claims 
should, therefore, increase the likelihood that Members will be able to 
submit claims to the Exchange in a timely manner.
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    \6\ Regular trading hours for days when the markets close early 
are typically 9:30 a.m. to 1:00 p.m. Eastern Time on the day after 
Thanksgiving and on Christmas Eve, unless Christmas Eve happens to 
fall on a weekend. See, e.g., Direct Edge Trading Notice 
13-47: Market Holiday Reminder--Thanksgiving. http://www.directedge.com/About/exchangenotices/ViewNewsletterDetail.aspx?NewsletterID=1143.
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Reimbursement for Losses Sustained at Trading Centers
    The Exchange also proposes to amend Exchange Rule 11.12 to add a 
new paragraph (e) that would authorize the Exchange, subject to express 
conditions and limitations, to compensate Members for losses relating 
to orders routed by the Exchange through DE Route to Trading Centers 
that the Member claims resulted directly from a Trading Center Systems 
Issue.
    The Exchange believes that the proposed rule change will provide a 
remedy, not currently available under Rule 11.12, to Members that 
experience losses due to Trading Center Systems Issues after DE Route 
routed the Members' orders to a Trading Center that experienced such 
issues. The Exchange's authority to compensate Members for losses under 
Rule 11.12(d) only covers losses incurred as a result of Exchange 
Systems Issues, and does not currently extend to Trading Center Systems 
Issues. Even if the Exchange, via DE Route, were to seek and receive 
compensation on behalf of a Member from a Trading Center relating to a 
Trading Center Systems Issue, it does not currently have the authority 
to, in turn, pass such compensation along to the affected Member. The 
Exchange, therefore, proposes to add a new paragraph (e) to Rule 11.12 
as an accommodation to Members, whereby the Exchange, via DE Route, 
would employ reasonable efforts to submit Members' claims for 
compensation on such Members' behalf to a Trading Center, and pass 
along to such Members the full amount of compensation, if any, obtained 
by DE Route from such Trading Center.\7\
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    \7\ DE Route is considered a facility of the Exchange, and, 
therefore, claims for compensation due to an Exchange Systems Issue 
experienced by DE Route must be submitted in accordance with 
Exchange Rule 11.12(d).
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    Under proposed Rule 11.12(e), the Exchange would undertake to 
accept claims for losses submitted by Members, which claims must 
contain representations from such Members as to the accuracy of the 
information contained therein and that any losses incurred were the 
direct result of a Trading Center Systems Issue.\8\ The Exchange would 
employ reasonable efforts to submit such claims, via DE Route, to the 
Trading Center in question. If and to the extent that DE Route were to 
receive compensation from a Trading Center in response to a claim 
submitted on behalf of a Member, the full amount of such compensation 
would be passed through to the Member.
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    \8\ Members receive reports from the Exchange shortly after a 
trade is consummated indicating whether their order, or a portion 
thereof, was executed at a Trading Center. The report will indicate 
the size and price of the execution on the Trading Center.
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    Proposed Rule 11.12(e)(1) would require that a Member seeking 
compensation for a loss due to a Trading Center Systems Issue must 
submit its claim to the Exchange in writing. The proposed rule would 
not include a specific deadline by which Members must submit claims for 
compensation. The Exchange notes that Trading Centers that are national 
securities exchanges impose different deadlines by which their Members 
must submit claims for compensation,\9\ and that many Trading Centers 
that are not national securities exchanges either do not impose any 
deadline or otherwise handle requests for compensation on a case-by-
case basis. It is, therefore, incumbent on, and the sole responsibility 
of, the Member to submit claims to the Exchange in a timely manner so 
that the Exchange may then forward such claim, via DE Route, in advance 
of any deadline required by that Trading Center. Upon receipt of a 
Member's claim, the Exchange would only verify that a valid order was 
submitted by the Member and accepted and acknowledged by the Exchange, 
that the Member's order or a portion of the order was routed by the 
Exchange via DE Route to a Trading Center, and that the Member 
represented that it incurred a loss as a result of a Trading Center 
Systems Issue. The Exchange would then use reasonable efforts to 
forward the claim, via DE Route, to such Trading Center.
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    \9\ See Nasdaq Stock Market LLC Rule 4626 (requiring claims for 
compensation to be submitted by 12:00 p.m. Eastern Time on T+1). See 
also NYSE Arca, Inc. Options Rule 14.2, NYSE MKT LLC Rule 905NY, 
Chicago Board Options Exchange, Incorporated Rule 6.7, BATS 
Exchange, Inc. Rule 11.16, and BATS-Y Exchange, Inc. Rule 11.16 
(requiring claims for compensation to be submitted by the open of 
regular trading hours on T+1).
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    Proposed Rule 11.12(e)(2) would state that the Exchange would pass 
along to the Member the full amount of any compensation that the 
Exchange, via DE Route, received from a Trading Center as a result of a 
claim submitted on

[[Page 76687]]

behalf of the Member. Any compensation paid to the Member would be paid 
solely from the compensation, if any, recovered from that Trading 
Center and not from any other source.
    Proposed Rule 11.12(e)(3) would account for the circumstance where 
more than one Member submitted a claim for loss resulting from the same 
Trading Center Systems Issue and the total amount of compensation 
received from the Trading Center is insufficient to fully satisfy the 
claims of all such Members. In such case, the Exchange would 
proportionally allocate the total amount received from the Trading 
Center, if any, among all such Members' claims based on the proportion 
that each such claim bears to the sum of all such claims. The Exchange 
believes that this provision will provide for equitable compensation 
among all Members that submit a valid claim related to a Trading Center 
Systems Issue by ensuring that Members are compensated on a pro rata 
basis.
    The payment of claims submitted in response to an Exchange Systems 
Issue would be separate and apart from any pass-through of compensation 
paid due to a Trading Center Systems Issue. Proposed Rule 11.12(e)(4) 
would state that any pass-through of compensation to a Member in 
accordance with Rule 11.12(e) would be unrelated to any other claims 
for compensation that are made due to an Exchange Systems Issues under 
Exchange Rule 11.12(d)(3). Accordingly, proposed Rule 11.12(e)(4) would 
state that any compensation paid to Members from reimbursement 
recovered from a Trading Center would not count against the Exchange's 
$500,000 monthly liability limit set forth in Rule 11.12(d)(1), nor any 
applicable insurance maintained by the Exchange.
    Notwithstanding the foregoing, the Exchange is not proposing to 
undertake or assume any responsibility to: (1) Independently validate 
information submitted by a Member in connection with a claim for 
compensation for loss arising out of a Trading Center Systems Issue, 
other than the ticker, size and side of the affected orders and the 
Trading Center to which the affected orders were routed and alleged to 
have experienced a Trading Center Systems Issue; (2) ascertain or 
comply with any mandatory deadlines within which to submit claims for 
compensation to a Trading Center; (3) guarantee that any compensation 
will be procured from a Trading Center; (4) negotiate agreements with 
any Trading Centers to require compensation under any circumstances; or 
(5) take any additional steps with respect to a Trading Center Systems 
Issue if such Trading Center denies or fails to respond to any claim 
for compensation, in whole or in part. In other words, the Exchange 
will, upon receipt of a claim for compensation from a Member for loss 
resulting from a Trading Center Systems Issue, reasonably endeavor to 
submit such claim, via DE Route, to the applicable Trading Center as 
soon as reasonably practicable, and if DE Route in turns receives an 
accommodation from such Trading Center, such accommodation will be 
passed along to the Member via the Exchange. Neither the Exchange nor 
DE Route will be under any obligation to know any Trading Center's 
rules, procedures and/or customs, to the extent any exist, for the 
submission of claims for compensation, nor to dispute a Trading 
Center's denial of a claim, whether in whole or in part, nor to take 
any further actions with respect to such claim in the event that the 
Trading Center does not respond at all to the claim. Accordingly, with 
this proposed rule change, the Exchange is not assuming any additional 
liability to Members for losses claimed to have resulted from Trading 
Center Systems Issues; rather, it proposes to serve a purely 
ministerial role, given the contractual privity that exists between DE 
Route and Trading Centers, in the submission of Members' claims for 
compensation to such Trading Centers on their behalf. To that end, 
proposed Rule 11.12(e)(5) would make clear that under no circumstances 
will the Exchanges' inability to procure compensation from a Trading 
Center, in whole or in part, for whatever reason, give rise to a claim 
for compensation from the Exchange pursuant to paragraph (d) of Rule 
11.12 as a ``negligent act or omission of an Exchange employee.'' 
Proposed Rule 11.12(e)(5) would further state that the Exchange would 
not be liable should the Trading Center deny such claim made pursuant 
to proposed Rule 11.12(e), in whole or in part, for any reason.
    The Exchange believes that the provisions outlined in the above 
paragraph are equitable because any claim submitted under the proposed 
Rule 11.12(e) would be subject to the rules, procedures, and discretion 
of the Trading Center in question. It is the Trading Center, and not 
the Exchange or DE Route, that ultimately decides whether to approve or 
deny a Member's claim, or even whether to act on such request at all. 
For example, the Exchange has no discretion over or responsibility for 
the information provided by the Member in its claim, and no discretion 
over or responsibility for whether such information is sufficient for 
the Trading Center to provide compensation. In addition, any claim 
submitted under the proposal would be subject to compensation only to 
the extent that the Trading Center provided such compensation to DE 
Route. Accordingly, because it is the Trading Center, and not the 
Exchange or DE Route, that ultimately decides whether a claim for 
compensation would be granted, the Exchange believes the proposal is 
fair and just in limiting the Exchange's liability in the event a 
Trading Center determines, for any reason, to deny a claim, in whole or 
in part, or even not to respond to such claim.
Implementation Date
    The Exchange intends to implement the proposed rule changes no 
later than January 15, 2014 and will announce its availability via a 
trading notice to be posted on the Exchange's Web site.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act \10\ and furthers the objectives of 
Section 6(b)(5) of the Act,\11\ in that it is designed promote just and 
equitable principles of trade, remove impediments to, and perfect the 
mechanism of, a free and open market and a national market system, and, 
in general, protect investors and the public interest. In addition, the 
Exchange believes that the proposed rule change is not designed to 
permit unfair discrimination between customers, issuers, brokers or 
dealers.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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Extension of Deadline To Submit Claims
    Extending the deadline by which claims for compensation are 
submitted to the Exchange is designed to increase the likelihood that 
Members will be able to submit claims in a timely manner. The Exchange 
believes that such expansion of time is reasonable given that Members 
often do not have all the necessary information to substantiate all 
facts bearing on the accuracy and completeness of a claim within the 
required current timeframe under Rule 11.12(d). Therefore, the Exchange 
believes the proposed rule change is equitable and will promote 
fairness in the market place by providing Members increased time to 
submit claims that result from an Exchange Systems Issue.

[[Page 76688]]

Reimbursement for Losses Sustained at other Trading Centers
    Proposed Rule 11.12(e) would enable the Exchange to pass through to 
Members any compensation that the Exchange is able to procure, via DE 
Route, from a Trading Center for losses claimed by Members to have 
resulted from a Trading Center Systems Issue. The proposal specifies a 
standardized method for Members to submit claims for compensation from 
a Trading Center, and for the Exchange to pass through to its Members 
any such compensation obtained, if and to the extent the Exchange, via 
DE Route, is able to obtain such compensation from the Trading Center. 
Furthermore, any compensation obtained by the Exchange from a Trading 
Center would be passed on to the Member who requested such 
reimbursement. If the amount received by the Exchange from the Trading 
Center was insufficient to satisfy all claims, it would be allocated 
among the claimants proportionally based on the percentage that each 
claimant's claim in relation to the sum of all claims received by the 
Exchange. In addition, the proposed pro-rata allocation methodology 
that the Exchange would employ would provide for equitable compensation 
among all Members who submit a claim related to a Trading Center 
Systems Issue and deter the risk of preferential treatment of certain 
Members by the Exchange. Therefore, the Exchange believes that the 
proposed rule change would protect investors and the public interest by 
potentially providing Members with a remedy not currently available to 
them to recover for losses incurred as a result of Trading Center 
Systems Issues, which generally arise from factors unrelated to their 
trading activities.

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

    The proposed rule change would not impose any burden on 
competition. The proposed rule change is designed to promote fairness 
in the marketplace by increasing the time within which a Member is to 
submit claims for Exchange System Issues and to be compensated for 
losses that result from Trading Center Systems Issues. The Exchange 
believes that the proposed rule changes will not burden intermarket 
competition because the benefits offered under the proposed rule 
changes are not currently offered by any other exchange. The Exchange 
believes that the proposed rule changes will not burden intramarket 
competition because all Members would be subject to the same deadline 
to submit a claim for Exchange Systems Issues and be able to submit 
claims for reimbursement for certain losses incurred due to Trading 
Center System Issues.

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

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the 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 from the date on which it was filed, or such shorter time as the 
Commission may designate if consistent with the protection of investors 
and the public interest, the proposed rule change has become effective 
pursuant to Section 19(b)(3)(A) of the Act \12\ and Rule 19b-
4(f)(6)(iii) thereunder.\13\
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(6)(iii). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and the text of the proposed rule change, at least 
five business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission.
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    A proposed rule change filed under Rule 19b-4(f)(6) of the Act \14\ 
normally does not become operative prior to 30 days after the date of 
the filing. However, pursuant to Rule 19b-4(f)(6)(iii) of the Act,\15\ 
the Commission may designate a shorter time if such action is 
consistent with the protection of investors and the public interest. 
The Exchange has requested that the Commission waive the 30-day 
operative delay so that the proposal may become operative immediately 
upon filing. The Commission believes that waiving the 30-day operative 
delay is consistent with the protection of investors and the public 
interest. Such waiver would immediately extend the time period by which 
Exchange members are able to submit claims seeking compensation for 
Exchange systems issues under EDGA Rule 11.12(d) and would immediately 
establish a means for members to potentially receive compensation for 
losses caused by a systems issue occurring at another Trading Center on 
orders routed to such Trading Center by DE Route. For these reasons, 
the Commission hereby waives the 30-day operative delay and designates 
the proposed rule change to be operative upon filing with the 
Commission.\16\
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    \14\ 17 CFR 240.19b-4(f)(6).
    \15\ 17 CFR 240.19b-4(f)(6)(iii).
    \16\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 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 change 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-EDGA-2013-36 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-EDGA-2013-36. 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.,

[[Page 76689]]

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 the principal offices 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-EDGA-2013-36, 
and should be submitted on or before January 8, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-30045 Filed 12-17-13; 8:45 am]
BILLING CODE 8011-01-P