[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Notices]
[Pages 21818-21821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08687]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71934; File No. SR-NYSEMKT-2014-30]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending the 
Professional User Fees for NYSE Amex Options Market Data, Operative on 
April 1, 2014

April 11, 2014.
    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 31, 2014, 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 amend the Professional User fees for NYSE 
Amex Options market data, operative on April 1, 2014. The text of the 
proposed rule change is available on the Exchange's Web site at 
www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to amend the Professional User fees for NYSE 
Amex Options market data, operative on April 1, 2014.
    On October 1, 2012, the Exchange began offering the following real-
time options market data products: ArcaBook for Amex Options--Trades, 
ArcaBook for Amex Options--Top of Book, ArcaBook for Amex Options--
Depth of Book, ArcaBook for Amex Options--Complex, ArcaBook for Amex 
Options--Series Status, and ArcaBook for Amex Options--Order Imbalance 
(collectively, ``Amex Options Products'').\4\ Fees cover all six 
products.\5\ From that time until May 1, 2013, the Exchange charged 
Professional Users $50 per month for each User per Source for the 
receipt and use of the Amex Options Products. Effective May 1, 2013, 
the Exchange introduced the following tiered fee structure for display 
usage by Professional Users based on the number of users: \6\
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    \4\ See Securities Exchange Act Release No. 67719 (Aug. 23, 
2012), 77 FR 52767 (Aug. 30, 2012) (SR-NYSEMKT-2012-40).
    \5\ See SR-NYSEMKT-2013-35 (establishing a fee schedule) and 
Securities Exchange Act Release No. 68004 (Oct. 9, 2012), 77 FR 
62582 (Oct. 15, 2012) (SR-NYSEMKT-2012-49) (establishing fees for 
Amex Options Products). Amex Options Products are not offered with 
separate fees for the individual underlying products.
    \6\ See Securities Exchange Act Release No. 69553 (May 10, 
2013), 78 FR 28926 (May 16, 2013) (SR-NYSEMKT-2013-40).

------------------------------------------------------------------------
                                                            Fee per
                 Professional users                    professional user
------------------------------------------------------------------------
1-50................................................                 $50
51-100..............................................                  35
101+................................................                  20
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    Because the tiered pricing has not encouraged customers to provide 
access to the Exchange's market data to a greater number of 
Professional Users as anticipated, the Exchange proposes to return to 
the flat fee of $50 per month for each Professional User. The Exchange 
does not propose to make any other changes to the fees for Amex Options 
Products.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\7\ in general, and 
Sections 6(b)(4) and 6(b)(5) of the Act,\8\ in particular, in that

[[Page 21819]]

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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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(4), (5).
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    The Exchange believes that the proposed change is reasonable 
because it returns Professional User fees to the level that was charged 
from October 2012 to May 2013. The current tiered pricing structure has 
not encouraged sufficient customers to provide access to the Exchange's 
market data to a greater number of Professional Users as the Exchange 
anticipated. The proposed fee is equitable and not unfairly 
discriminatory because the same fee will be charged to all Professional 
Users.
    The Exchange also notes that purchasing Amex Options Products is 
entirely optional. Firms are not required to purchase them and have a 
wide variety of alternative options market data products from which to 
choose. Moreover, the Exchange is not required to make these 
proprietary data products available or to offer any specific pricing 
alternatives to any customers.
    The decision of the United States Court of Appeals for the District 
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. 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.' '' \9\ The Exchange 
believes that this is also true with respect to options markets.
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    \9\ NetCoalition, 615 F.3d at 535.
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    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 proposed in this 
filing are the product of competition and therefore satisfy the 
relevant statutory standards.\10\ In addition, the existence of 
alternatives to these data products, such as options 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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    \10\ 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.\11\ The Exchange 
believes that, even if it were possible as a matter of economic theory, 
cost-based pricing for non-core market data would be so complicated 
that it could not be done practically.\12\
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    \11\ NetCoalition, 615 F.3d at 536.
    \12\ The Exchange believes that cost-based pricing would be 
impractical because it would create enormous administrative burdens 
for all parties, including the Commission, to cost-regulate a large 
number of participants and standardize and analyze extraordinary 
amounts of information, accounts, and reports. In addition, and as 
described below, it is impossible to regulate market data prices in 
isolation from prices charged by markets for other services that are 
joint products. Cost-based rate regulation would also lead to 
litigation and may distort incentives, including those to minimize 
costs and to innovate, leading to further waste. Under cost-based 
pricing, the Commission would be burdened with determining a fair 
rate of return, and the industry could experience frequent rate 
increases based on escalating expense levels. Even in industries 
historically subject to utility regulation, cost-based ratemaking 
has been discredited. As such, the Exchange believes that cost-based 
ratemaking would be inappropriate for proprietary market data and 
inconsistent with Congress's direction that the Commission use its 
authority to foster the development of the national market system, 
and that market forces will continue to provide appropriate pricing 
discipline. See Appendix C to NYSE's comments to the Commission's 
2000 Concept Release on the Regulation of Market Information Fees 
and Revenues, which can be found on the Commission's Web site at 
http://www.sec.gov/rules/concept/s72899/buck1.htm.
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    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

    In accordance with Section 6(b)(8) of the Act,\13\ 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 products is constrained by actual competition for the sale of 
proprietary data products, the joint product nature of exchange 
platforms, and the existence of alternatives to the Exchange's 
proprietary data.
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    \13\ 15 U.S.C. 78f(b)(8).
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    The Existence of Actual Competition. The market for proprietary 
options data products is currently competitive and inherently 
contestable because there is fierce competition for the inputs 
necessary for the creation of proprietary data and strict pricing 
discipline to the proprietary products themselves. Numerous exchanges 
compete with each other for options trades and sales of options 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 options market data. 
Proprietary options data products are produced and distributed by each 
individual exchange, as well as other entities, in a vigorously 
competitive market.
    Competitive markets for order flow, executions, and transaction 
reports provide pricing discipline for the inputs of proprietary 
options data products and therefore constrain markets from overpricing 
proprietary market data. The U.S. Department of Justice has 
acknowledged the aggressive competition among exchanges, including for 
the sale of proprietary market data itself. In 2011, 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 of every exchange and information on each equity 
trade, including the last sale.'' \14\ Similarly, the options markets 
vigorously compete with respect to options data products.\15\ 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.
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    \14\ 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.
    \15\ See, e.g., Securities Exchange Act Release No. 67466 (July 
19, 2012), 77 FR 43629 (July 25, 2012) (SR-Phlx-2012-93), which 
describes a variety of options market data products and their 
pricing.
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    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

[[Page 21820]]

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. Vendors will not elect to make 
available the Amex Options Products unless their customers request it, 
and data recipients with Professional Users 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 execution 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. 
Further, data products are valuable to many end-users only insofar as 
they provide information that end-users expect will assist them in 
making trading decisions. In that respect, the Exchange believes that 
the Amex Options Products offer options market data information that is 
useful for professionals in making trading decisions.
    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.\16\ 
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.\17\
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    \16\ 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 Securities Exchange 
Act Release Nos. 71217 (Dec. 31, 2013), 79 FR 875, 877 (Jan. 7, 
2014) (SR-NASDAQ-2013-162) and 70945 (Nov. 26, 2013), 78 FR 72740, 
72741 (Dec. 3, 2013) (SR-NASDAQ-2013-142) (``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 execution are a paradigmatic example of joint 
products with joint costs.'').
    \17\ 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.'').
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    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 self-regulatory organization (``SRO'') options markets, 
two of which were approved in the last two years.\18\ The Exchange 
believes that these new entrants demonstrate that competition is 
robust.
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    \18\ See Securities Exchange Act Release Nos. 70050 (July 26, 
2013), 78 FR 46622 (August 1, 2013) (File No. 10-209) and 68341 
(December 3, 2012), 77 FR 73065 (December 7, 2012) (File No. 10-
207).
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    Each SRO market competes to produce transaction reports via trade 
executions. 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 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 that currently 
produce proprietary data or are currently capable of producing it 
provides further pricing discipline for proprietary data products. Each 
SRO 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 Arca, Inc.; Chicago Board Options 
Exchange, Incorporated; C2 Options Exchange, Incorporated; 
International Securities Exchange, LLC; NASDAQ; Phlx; BX; BATS 
Exchange, Inc. (``BATS''); and Miami International Securities Exchange 
LLC. Because market data users can thus find suitable substitutes for 
most proprietary market data products,\19\ 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.
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    \19\ See supra note 15.
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    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, inexpensive, and

[[Page 21821]]

profitable. 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. Two new options exchanges have been approved by the SEC in 
the last two years alone.\20\
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    \20\ See supra note 18.
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    In establishing the proposed fees, the Exchange considered the 
competitiveness of the market for proprietary options 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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \21\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \22\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \23\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \23\ 15 U.S.C. 78s(b)(2)(B).
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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-2014-30 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2014-30. 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 Section, 100 F Street 
NE., Washington, DC 20549-1090. Copies of the filing will also be 
available for inspection and copying at the NYSE's principal office and 
on its Internet Web site at www.nyse.com. All comments received will be 
posted without change; the Commission does not edit personal 
identifying information from submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEMKT-2014-30 and should be submitted 
on or before May 8, 2014.
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    \24\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2014-08687 Filed 4-16-14; 8:45 am]
BILLING CODE 8011-01-P