[Federal Register Volume 80, Number 137 (Friday, July 17, 2015)]
[Notices]
[Pages 42597-42600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17500]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75432; File No. SR-NYSEMKT-2015-23]


Self-Regulatory Organizations; NYSE MKT LLC; Order Approving 
Proposed Rule Change, as Modified by Amendment No. 1, Adopting a 
Principles-Based Approach To Prohibit the Misuse of Material Nonpublic 
Information by Specialists and e-Specialists by Deleting Rule 927.3NY 
and Section (f) of Rule 927.5NY

July 13, 2015.

I. Introduction

    On April 8, 2015, NYSE MKT LLC (the ``Exchange'' or ``NYSE MKT'') 
filed with the Securities and Exchange Commission (the ``Commission''), 
pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934 
(``Act'') \2\ and Rule 19b-4 thereunder,\3\ a

[[Page 42598]]

proposed rule change adopting a principles-based approach to prohibit 
the misuse of material nonpublic information by Specialists and e-
Specialists by deleting NYSE MKT Rule 927.3NY and Section (f) of NYSE 
MKT Rule 927.5NY. The proposed rule change was published for comment in 
the Federal Register on April 14, 2015.\4\ The Commission received one 
comment letter regarding the proposed rule change.\5\ On May 20, 2015, 
the Commission extended the time period in which to either approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to approve or disapprove the proposed 
rule change to July 13, 2015.\6\ On June 18, 2015, the Exchange filed 
Amendment No. 1 to the proposed rule change.\7\ This order approves the 
proposed rule change, as modified by Amendment No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 74677 (April 8, 
2015), 80 FR 20049 (``Notice'').
    \5\ See Letter from Peter D. Selman, Managing Director, Goldman 
Sachs & Co., dated May 5, 2015 (``Goldman Letter'').
    \6\ See Securities Exchange Act Release No. 75004 (May 20, 
2015), 80 FR 30301 (May 27, 2015).
    \7\ In Amendment No. 1 the Exchange clarifies that it is not 
proposing to change what is considered to be material, non-public 
information and, thus does not expect there to be any changes to the 
types of information that an affiliated brokerage business of a 
Specialist or e-Specialist could share with such Specialist or e-
Specialist. In that regard, the Exchange explains that it no longer 
offers Reserve Orders, and the proposed rule change would not permit 
the affiliates of a Specialist or e-Specialist to have access to any 
non-public order or quote information of the Specialist of e-
Specialist. The Exchange also explains that it does not believe that 
there will be any material change to member information barriers as 
a result of removal of the Exchange pre-approval requirement. In 
fact, the Exchange anticipates that eliminating the pre-approval 
requirement should facilitate implementation of changes to member 
information barriers as necessary to protect against the misuse of 
material, non-public information. The Exchange also suggests that 
the pre-approval requirement is unnecessary because Specialists no 
longer have agency responsibilities to the book, or time and place 
information advantages because of their market role. Finally, the 
Exchange argues that NYSE MKT Rule 927.5NY(f) is a principles-based 
information barrier rule that is redundant of the requirements 
applicable to all members under NYSE MKT Rule 3(j). Amendment No. 1 
is not subject to notice and comment because it is a technical 
amendment that does not alter the substance of the proposed rule 
change or raise any novel regulatory issues. Amendment No. 1 has 
been placed in the public comment file for SR-NYSEMKT-2015-23 at 
http://www.sec.gov/comments/sr-nysemkt-2015-23/nysemkt201523.shtml 
(see letter from Martha Redding, Senior Counsel, Assistant 
Secretary, New York Stock Exchange LLC (``NYSE''), to Secretary, 
Commission, dated June 30, 2015) and also is available at the 
Exchange's Web site at https://www.nyse.com/regulation/rule-filings.
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II. Description of the Proposal

    The Exchange proposes to delete NYSE MKT Rule 927.3NY, which sets 
forth prescriptive requirements for Specialists to have information 
barriers, and NYSE MKT Rule 927.5NY(f), which sets forth a principles-
based, information barrier requirement for e-Specialists. NYSE MKT Rule 
3(j), which requires that every Exchange member establish, maintain, 
and enforce written policies and procedures reasonably designed to 
prevent the misuse of material, non-public information by such member 
or associated persons, would remain in effect and would continue to 
apply to both Specialists and e-Specialists.
    Under NYSE MKT Rule 3(j), the misuse of material, non-public 
information includes, but is not limited to, the following:
    (a) Trading in any securities issued by a corporation, or in any 
related securities or related options or other derivative securities, 
while in possession of material, non-public information concerning that 
issuer;
    (b) trading in a security or related options or other derivative 
securities, while in possession of material, non-public information 
concerning imminent transactions in the security or related securities; 
or
    (c) disclosing to another person or entity any material, non-public 
information involving a corporation whose shares are publicly traded or 
an imminent transaction in an underlying security or related securities 
for the purpose of facilitating the possible misuse of such material, 
non-public information.

Pursuant to NYSE MKT Rule 3(j), Specialists and e-Specialists are 
obligated to ensure that their policies and procedures reflect the 
current state of their business and are reasonably designed to protect 
against the misuse of material, non-public information, applicable 
federal securities law and regulations, and Exchange rules. The 
Exchange believes that such a principles-based approach should provide 
Specialists, e-Specialists and ATP Holders with greater flexibility to 
develop and adapt their policies and procedures as appropriate to 
reflect their business model, business activities, or the securities 
market.\8\
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    \8\ See Notice, supra note 4, 80 FR at 20050.
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    The Exchange notes that under this proposed rule change an ATP 
Holder could structure its options Specialists, e-Specialists, or 
Market Makers, as applicable, with the firm's equities and customer-
facing businesses; provided, that any such structuring be done in a 
manner reasonably designed to protect against the misuse of material, 
non-public information.\9\ For example, the Exchange explains that 
pursuant to NYSE MKT Rule 3(j), a Specialist could be in the same 
independent trading unit, as defined in Rule 200(f) of Regulation 
SHO,\10\ as an equities market maker and other trading desks within the 
firm, including options trading desks, to facilitate the sharing of 
post-trade information for risk management purposes across related 
securities.\11\ Further, consistent with NYSE MKT Rule 3(j) and Section 
15(g) of the Act,\12\ the Exchange notes that a firm with reasonably 
designed policies and procedures, including information barriers as 
applicable, to protect against the misuse of material non-public 
information, and specifically customer information, could share options 
position and related hedging position information (e.g., equities, 
futures, and foreign currency) within a firm to better manage risk on a 
firm-wide basis.\13\ The Exchange also notes that if Specialists or e-
Specialists are integrated with other market making operations, they 
would be subject to existing Exchange rules that prohibit ATP Holders 
from disadvantaging their customers or other market participants by 
improperly capitalizing on a member organization's access to the 
receipt of material, non-public information.\14\ Nonetheless, the 
Exchange also notes that while the proposed rule change would no longer 
specifically require information barriers, an ATP Holder's business 
model or business activities may dictate that an information barrier or 
a functional separation be part of the policies and procedures that are 
reasonably designed to achieve compliance with applicable securities 
law and regulations, and with applicable Exchange rules.\15\
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    \9\ See id. at 20051.
    \10\ 17 CFR 242.200(f).
    \11\ See Notice, supra note 4, 80 FR at 20051.
    \12\ 15 U.S.C. 78o(g).
    \13\ See Notice, supra note 4, 80 FR at 20051.
    \14\ See id. at 20051-52.
    \15\ See id. at 20052.
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    Deleting NYSE MKT Rule 927.3NY will remove the requirement for 
specified, prescriptive information barriers as well as the pre-
approval of any information barriers used by Specialists. Deleting NYSE 
MKT Rule 927.5NY(f) will remove the explicit information barrier 
requirement for e-Specialists. However, the Exchange notes, as is the 
case today with Market Makers, that information barriers of new 
entrants, including new Specialists, would be subject to review as part 
of a new firm application.\16\ Moreover, the policies and procedures of 
Specialists

[[Page 42599]]

and e-Specialists, including those relating to information barriers, 
would be subject to review by the Financial Industry Regulatory 
Authority (``FINRA''), on behalf of the Exchange, pursuant to a 
Regulatory Services Agreement.\17\
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    \16\ See id. at 20050-51, n. 7.
    \17\ See id.
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    The Exchange also represents that Specialists and e-Specialists do 
not have different or greater access to nonpublic information than 
other market participants on the Exchange, and differ from other types 
of Exchange Market Makers only because of heightened obligations and 
allocation guarantees.\18\ Specifically, the Exchange notes that 
Specialists and e-Specialists, like other types of Exchange Market 
Makers, do not have any agency responsibilities for orders in the 
Consolidated Book. Accordingly, the Exchange believes that it is 
appropriate to apply a consistent, principles-based, regulatory 
framework related to the protection against the misuse of material non-
public information for Specialists, e-Specialists and Market Makers 
under NYSE MKT Rule 3(j).
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    \18\ See Rules 927NY(c) and 927.5NY; see also Notice, supra note 
4, 80 FR at 20050.
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    The Exchange also proposes to make a conforming amendment to remove 
references to NYSE MKT Rule 927.3NY from NYSE MKT Rule 927.6NY.

III. Summary of Comment Received

    The Commission received one comment letter in support of the 
proposal.\19\ The commenter stated that Exchange Specialists no longer 
have informational advantages compared to other Exchange market 
participants, and thus the specific and rigid requirements applied to 
Specialists under NYSE MKT Rule 927.3NY and NYSE MKT Rule 927.5NY(f) 
are no longer meaningful.\20\ In addition, the commenter posited that 
the proposal would promote effective risk management by enabling firms 
with multiple options trading desks to share proprietary options 
positions and related hedging position information.\21\ The commenter 
explained that many firms seek to centralize trading operations in 
order to eliminate redundancies, develop more resilient system 
architecture, and thereby reduce position risk.\22\ The commenter also 
opined that the proposed rule change is consistent with the 
Commission's efforts to require firms to more effectively limit 
exposure resulting from trading market risk.\23\ Further, the commenter 
suggested that the Exchange's proposed approach to preventing the 
misuse of material non-public information be adopted by other option 
exchanges such that the benefits of the proposal could be fully 
realized.\24\
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    \19\ See Goldman Letter, supra note 5.
    \20\ Id. at 1.
    \21\ Id.
    \22\ Id. at 2.
    \23\ Id.
    \24\ Id.
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IV. Discussion and Commission Findings

    After careful consideration, the Commission finds that the proposed 
rule change, as modified by Amendment No. 1, is consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to a national securities exchange.\25\ The Commission 
believes that the proposed rule change, as modified by Amendment No. 1, 
is consistent with Section 6(b)(5) \26\ in particular, in that it is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest.
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    \25\ In approving this rule change, the Commission notes that it 
has considered the proposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \26\ 15 U.S.C. 78f(b)(5).
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    The Exchange proposes to delete NYSE MKT Rule 927.3NY, which sets 
forth prescriptive requirements for Specialists to have information 
barriers, and NYSE MKT Rule 927.5NY(f), which sets forth a principles-
based, information barrier requirement for e-Specialists. The 
Commission believes that the proposed rule change is consistent with 
the Act because it continues to require firms to maintain policies and 
procedures, consistent with NYSE MKT Rule 3(j) and Section 15(g) of the 
Act,\27\ that are reasonably designed to prevent the misuse of 
material, non-public information, while allowing firms greater 
flexibility in structuring their business and compliance operations. 
Further, as noted by the Exchange in the Notice, if Specialists or e-
Specialists are integrated with other market making operations, they 
would be subject to existing Exchange rules that prohibit ATP Holders 
from disadvantaging their customers or other market participants by 
improperly capitalizing on a member organization's access to the 
receipt of material, non-public information.\28\ For example, NYSE MKT 
Rule 320 requires members to establish, maintain, enforce, and keep 
current a system of compliance and supervisory controls, reasonably 
designed to achieve compliance with applicable securities laws and 
Exchange rules, and NYSE MKT Rule 995NY(c) prevents an ATP Holder or 
person associated with an ATP Holder, who has knowledge of an 
originating order, a solicited order, or a facilitation order, to 
enter, based on such knowledge, an order to buy or sell an option on 
the underlying securities of any option that is the subject of the 
order, an order to buy or sell the security underlying any option that 
is the subject of the order, or any order to buy or sell any related 
instrument unless certain disclosure or timing requirements are 
satisfied.
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    \27\ 15 U.S.C. 78o(g). See Notice, supra note 4, 80 FR at 20051-
52.
    \28\ See Notice, supra note 4, 80 FR at 20051-52.
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    The Commission notes that the Exchange has represented that 
Specialists and e-Specialists do not have informational advantages 
compared to other Exchange market participants.\29\ The Commission 
additionally notes that the Exchange has specified that it no longer 
offers Reserve Orders, and, further specified that in no event would 
this proposed rule change permit the affiliates of a Specialist or e-
Specialist to have access to any non-public quote or order information 
of the Specialist or of the e-Specialist.\30\ Accordingly, based on the 
Exchange's representations that (1) Specialists and e-Specialists do 
not have informational advantages compared to other Exchange market 
participants, (2) Specialists and e-Specialists are not be permitted to 
share any hidden, non-public quote or order interest with an affiliate, 
and (3) ATP Holders are prohibited from disadvantaging their customers 
or other market participants by improperly capitalizing on a member 
organization's access to the receipt of material, non-public 
information, the Commission believes that it is appropriate for the 
Exchange to adopt a principles-based regulatory approach.\31\ 
Nonetheless, the

[[Page 42600]]

Commission notes that, while information barriers are not specifically 
required under this proposed rule change, a firm's business model or 
business activities may dictate that an information barrier or a 
functional separation be part of the appropriate set of policies and 
procedures that would be reasonably designed to achieve compliance with 
applicable securities law and regulations, and with applicable Exchange 
rules.
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    \29\ See Amendment No. 1, supra note 7.
    \30\ See id.
    \31\ In approving this rule change, the Commission notes that it 
has considered the proposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f). The 
Commission notes that NYSE Arca Equities, Inc. (``NYSE Arca'') and 
BATS Exchange, Inc.'s (``BATS''), cash equity markets that trade 
electronically, have both adopted a principles-based approach to 
protecting against the misuse of material non-public information. 
See Securities Exchange Act Release Nos. 60604 (Sept. 2, 2009), 76 
FR 46272 (Sept. 8, 2009) (SR-NYSEArca-2009-78) (``Arca Approval 
Order''); 61574 (Feb. 23, 2010), 75 FR 9455 (Mar. 2, 2010) (SR-BATS-
2010-003) (``BATS Approval Order''). Similarly, NYSE and NYSE MKT, 
except for prescribed rules relating to floor-based designated 
market makers that have access to specified non-public trading 
information, also adopted principles-based approaches to prevent the 
misuse of material non-public information for cash equity markets. 
See Securities Exchange Act Release Nos. 72534 (July 3, 2014), 79 FR 
39019 (July 9, 2014) (SR-NYSE-2014-12) (``NYSE Approval Order''); 
72535 (July 3, 2014) 79 FR 39024 (July 9, 2014) (SR-NYSEMKT-2014-22) 
(``NYSE MKT Approval Order'').
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    Finally, the Commission notes that the policies and procedures 
required by NYSE MKT Rule 3(j) are subject to oversight by the Exchange 
and review by FINRA,\32\ and the Commission emphasizes that member 
organizations operating a Specialist, e-Specialist or Market Maker 
should be proactive in assuring that its policies and procedures 
reflect the current state of its business and continue to be reasonably 
designed to achieve compliance with applicable federal securities law 
and regulations and with applicable Exchange rules.\33\
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    \32\ See Notice, supra note 4, 80 FR at 20050-51, n. 7.
    \33\ The Commission notes that such policies and procedures may 
include the programming and operation of a member organization's 
trading algorithms to protect against the misuse of material non-
public information.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\34\ that the proposed rule change (SR-NYSEMKT-2015-23), as modified by 
Amendment No. 1, be, and it hereby is, approved.
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    \34\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\35\
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    \35\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-17500 Filed 7-16-15; 8:45 am]
 BILLING CODE 8011-01-P