[Federal Register Volume 80, Number 212 (Tuesday, November 3, 2015)]
[Notices]
[Pages 67830-67833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27909]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76292; File No. SR-NYSEMKT-2015-81]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Amending Rule 123D--
Equities To Specify That Exchange Systems May Open One or More 
Securities Electronically if a Designated Market Maker Registered in a 
Security or Securities Cannot Facilitate the Opening of Trading as 
Required by Exchange Rules

October 28, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on October 23, 2015, NYSE MKT LLC (the ``Exchange'' or ``NYSE MKT'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. 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 Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 123D--Equities to specify that 
Exchange systems may open one or more securities electronically if a 
Designated Market Maker registered in a security or securities cannot 
facilitate the opening of trading as required by Exchange rules. 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 Rule 123D--Equities (``Rule 123D'') 
to specify that Exchange systems may open one or more securities 
electronically if a Designated Market Maker (``DMM'') registered in a 
security or securities cannot facilitate the open of trading as 
required by Exchange rules.\3\
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    \3\ The proposed amendment contemplates that a DMM's inability 
to open securities either manually or electronically would be 
related to business continuity disruptions such as the physical 
closing of the Exchange Trading Floor or equipment and connectivity 
breakdowns that prevent the DMM from opening a security either 
manually or electronically. When a DMM is unable to open securities 
manually or electronically, the DMM's affirmative obligations under 
Rule 104 would not apply.
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    Currently, Rule 123D provides that openings may be effected 
manually or electronically. However, the current rule contemplates that 
openings would be facilitated by a DMM, as provided for in Rule 
104(a)(2)--Equities. The Exchange proposes to re-number Rule 123D to 
provide that current Rule 123D(1) would be re-numbered as Rule 123D(a), 
and the heading would be amended to be referred to as ``Openings.'' \4\ 
Proposed Rule 123D(a)(1) would include the current first paragraph of 
Rule 123D(1).
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    \4\ The Exchange would also delete the terms ``Delayed'' and 
``Halts in trading'' from the current Rule 123D(1) heading. The 
Exchange further proposes to add a new sub-paragraph (b) to Rule 
123D, before the current second paragraph of Rule 123D(1), which 
would be named ``Delayed Openings/Halts in Trading.'' The Exchange 
proposes further non-substantive amendments to re-number current 
Rule 123D(2) as 123D(c). As discussed below, the Exchange proposes 
to delete current Rule 123D(3) and (4).
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    The Exchange proposes to add a new paragraph (a)(2) to Rule 123D to 
provide that, if a DMM cannot facilitate the open of trading for one or 
more securities for which the DMM is registered, the Exchange would 
open those securities electronically on a quote or a trade as provided 
for in paragraphs (a)(3)--(a)(6) of the proposed Rule. Proposed Rule 
123D(a)(2) would further provide that manually-entered Floor interest 
would not participate in any open effected electronically by the 
Exchange and if previously entered, would be ignored. Finally, proposed 
Rule 123D(a)(2) would provide that, unless otherwise specified, 
references to an open or opening in proposed Rules 123D (a)(3)--(a)(6) 
would also mean a reopening following a trading halt or pause.
    Proposed Rule 123D(a)(3) would specify when the Exchange would open 
a security on a trade and would provide that the Exchange would open a 
security on a trade if there is buy and sell interest that can trade a 
round lot or more at a price that is no greater than or no less than a 
specified range (``Opening Price Range'') away from the last sale price 
on the Exchange (``Reference Price''). Proposed Rule 123D(a)(3) would 
further provide that the Exchange would determine the Opening Price 
Range parameters upon advance notice to market participants.
    Unlike DMMs, who have the obligation to trade for their own account 
to supply liquidity as needed to facilitate openings,\5\ the Exchange 
would not supply any liquidity when effecting an electronic open. 
Without the addition of liquidity to offset an imbalance, pricing the 
opening based on a significant imbalance could result in an opening 
price that may not be reasonably related to the last sale price on the 
Exchange. To avoid opening a security at a price too far away from the 
last sale, the Exchange proposes to establish numerical guidelines to 
provide parameters regarding the price a security may open when the 
Exchange opens such security on a trade. The Exchange proposes to 
establish the

[[Page 67831]]

Opening Price Range parameters from time to time upon advance notice to 
market participants, which is similar to how other markets function.\6\
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    \5\ See Rule 104(a)(2)--Equities & 104(f)(ii)--Equities.
    \6\ See, e.g., Nasdaq Stock Market LLC (``Nasdaq'') Rule 
4752(b)[sic](2)(E) (Nasdaq management sets and modifies benchmarks 
and thresholds for the Nasdaq Opening Cross from time to time upon 
prior notice to market participants); NYSE Arca Equities, Inc. 
(``NYSE Arca Equities'') Rule 1.1(s)(A) (NYSE Arca Equities sets and 
modifiers price collar thresholds for the Market Order Auction from 
time to time upon prior notice to ETP Holders).
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    Proposed Rule 123D(a)(3)(A)--(C) would specify how orders would 
participate if the Exchange opens a security on a trade. Proposed Rule 
123D(a)(3)(A) would provide that if all interest guaranteed to 
participate in an opening trade under Rule 115A(b) \7\ could trade at a 
price consistent with the Opening Price Range, the opening trade would 
be at the price at which all such interest could trade. Proposed Rule 
123D(a)(3)(B) would provide that if there are only Market Orders on 
both sides of the market, the opening price would be the Reference 
Price.
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    \7\ Rule 115A(b)--Equities provides that when arranging an 
opening or reopening price, except as provided for in Rule 
115A(b)(2)--Equities which concerns opening a security on a quote, 
market interest would be guaranteed to participate in the opening or 
reopening transaction and have precedence over limit interest that 
is priced equal to the opening or reopening price of a security and 
DMM interest. For purposes of the opening or reopening transaction, 
market interest includes (1) market and Market on Open (``MOO'') 
orders, (2) tick-sensitive market and MOO orders to buy (sell) that 
are priced higher (lower) than the opening or reopening price, (3) 
limit interest to buy (sell) that is priced higher (lower) than the 
opening or reopening price, and (iv) Floor broker interest entered 
manually by the DMM. See Rule 115A(b)(1)(A)--Equities. For purposes 
of the opening or reopening transaction, limit interest would 
include (2) limited-priced interest, including--Quotes, Limit on 
Open (``LOO'') orders, and G orders; and (ii) tick-sensitive market 
and MOO orders that are priced equal to the opening or reopening 
price of a security. See Rule 115A(b)(1)(C)--Equities. In addition, 
G orders that are priced equal to the opening or reopening price of 
a security would yield to all other limit interest priced equal to 
the opening or reopening price of a security except DMM interest.
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    Because the Exchange would open a security within specified 
guidelines, not all interest that is intended for the open may 
participate in such an open. Proposed Rule 123D(a)(3)(C) would 
therefore provide that if interest that is otherwise guaranteed to 
participate in an opening trade under Rule 115A(b)--Equities would 
cause an opening price to be outside the Opening Price Range, such 
interest would not be guaranteed to participate in the opening trade. 
In that case, the Exchange proposes that the opening trade would be at 
the price at which the maximum volume of shares is tradable that is 
closest to the Reference Price and that orders would be allocated in 
the following priority, which is based on the priority of orders set 
forth in Rule 115A(b)--Equities:
     Proposed Rule 123D(a)(3)(C)(i) would provide that Market 
and Market-on-Open (``MOO'') orders would trade first in time priority, 
provided that, during a Short Sale Period, sell short market orders and 
MOO orders would be adjusted to a Permitted Price \8\ and would be 
considered limit orders for purposes of determining allocation 
priority.
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    \8\ As set forth in Rule 440B--Equities, a short sale price test 
is activated if the price of a listed security declines by 10% or 
more from the previous day's last sale on the listing market and 
continues through the end of the following trading day (the ``Short 
Sale Period''). Pursuant to Rule 440B(e)--Equities, Exchange systems 
will re-price short sale orders that are limited to the current 
national best bid (``NBB'') or lower and short sale market orders by 
one minimum price increment above the NBB (the ``Permitted Price''). 
The Permitted Price for securities for which the NBB is $1 or more 
is $.01 above the NBB; the Permitted Price for securities for which 
the NBB is below $1 is $.0001 above the NBB.
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     Proposed Rule 123D(a)(3)(C)(ii) would provide that Stop 
Orders that would be elected based on the opening price would trade 
second in time priority. As further proposed, during a Short Sale 
Period, sell short Stop Orders that are priced to a Permitted Price 
that would be lower than the opening price would trade after all other 
Stop Orders and before all other interest priced equal to or lower than 
the opening price.
     Proposed Rule 123D(a)(3)(C)(iii) would provide that Limit 
Orders (including Reserve Orders) to buy (sell) and e-Quotes (including 
Reserve e-Quotes) to buy (sell) priced higher (lower) than the opening 
price would trade third on parity by agent under Rule 72(c)--
Equities.\9\
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    \9\ Rule 72(c)--Equities describes the allocation of executions 
on the Exchange and Rule 72(c)(ii)--Equities provides that for 
purposes of share allocation in an execution, each single Floor 
broker, the DMM and orders collectively represented in Exchange 
systems shall constitute individual participants. Rule 72(c)(iv)--
Equities provides that executed volume shall be allocated to each 
participant on parity.
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     Proposed Rule 123D(a)(3)(C)(iv) would provide that G-
quotes \10\ to buy (sell) priced higher (lower) than the opening price 
will trade fourth on parity by agent under Rule 72(c)--Equities.
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    \10\ Section 11(a)(1) of the Act, 15 U.S.C. 78k(a)(1), generally 
prohibits a member of a national securities exchange from effecting 
transactions on that exchange for its own account, the account of an 
associated person, or any account over which it or an associated 
person exercises discretion. Subsection (G) of Section 11(a)(1) 
provides an exemption allowing an exchange member to have its own 
floor broker execute a proprietary transaction (``G order''). A G-
Quote is an electronic method for Floor brokers to represent G 
orders. G orders on NYSE yield priority, parity and precedence based 
on size to all other non-G orders.
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     Finally, proposed Rule 123D(a)(3)(C)(v) would provide that 
all other limit interest that is priced equal to the opening price will 
trade last and be allocated consistent with Rule 115A(b)(1)--Equities.
    Proposed Rule 123D(a)(4) would describe when the Exchange would 
open a security electronically on a quote. First, proposed Rule 
123D(a)(4)(A) would provide that if interest of less than a round lot 
pairs off at a price within the Opening Price Range, the Exchange would 
open on a quote. In this circumstance, after opening on a quote, 
interest of less than a round lot would trade at the price closest to 
the Reference Price (or at the Reference Price if the only interest is 
market orders), but would not be reported as an opening trade.
    Proposed Rule 123D(a)(4)(B) would provide that the Exchange would 
open a security electronically on a quote if interest of any size pairs 
off at a price below (above) the lower (upper) boundary of the Opening 
Price Range, in which case, such paired-off interest would not trade.
    Proposed Rule 123D(a)(4)(C) would provide that the Exchange would 
open a security electronically on a quote if there is no interest that 
can be quoted on either or both sides of the market. The proposed Rule 
would further specify that if an opening quote has a zero bid and/or a 
zero offer, it would not constitute an ``Opening Price'' as defined in 
Section I(I) of the Regulation NMS Plan to Address Extraordinary Market 
Volatility (the ``Plan'').\11\ Accordingly, if the Exchange were to 
open on a quote with a zero bid and/or a zero offer, it would not 
calculate a midpoint of the quote for purposes of calculating Price 
Bands as provided for in Section V(B)(1) of the Plan.
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    \11\ See Securities Exchange Act Release No. 67091, 77 FR 33498 
(June 6, 2012) (File No. 4-631).
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    Proposed Rule 123D(a)(5) would specify which information would be 
provided in advance of an opening or reopening. In order to provide 
transparency regarding the opening process, the Exchange proposes that 
during an opening effected by the Exchange, Order Imbalance Information 
pursuant to Rule 15(c)--Equities would be published.\12\ However, 
because the

[[Page 67832]]

Exchange would not open a security at a price outside of specified 
ranges, the Exchange would not issue pre-opening indications in a 
security pursuant to either Rule 15(a)--Equities or 123D.\13\ The 
Exchange further proposes that it would publish pre-opening indications 
pursuant to Rule 123D(b) for a re-opening following a regulatory halt.
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    \12\ Order Imbalance Information reflects real-time order 
imbalances that accumulate prior to the opening transaction on the 
Exchange and the price at which interest eligible to participate in 
the opening transaction may be executed in full. Order Imbalance 
Information disseminated pursuant to Rule 15(c)--Equities includes 
all interest eligible for execution in the opening transaction of 
the security in Exchange systems, i.e., electronic interest, 
including Floor broker electronic interest, entered into Exchange 
systems prior to the opening. Order Imbalance Information is 
disseminated on the Exchange's proprietary data feeds. See Rule 
15(c)(1)--Equities.
    \13\ See Proposed Rule 123D(a)(2) (F) [sic]. Rule 123D(1) 
requires the dissemination of one or more indications in connection 
with any delayed opening where a security has not opened or been 
quoted by 10 a.m. In addition, Rule 123D(1) provides that 
dissemination of one or more indication is mandatory for an opening 
which will result in a ``significant'' price change from the 
previous close. For securities priced under $10, such indications 
are mandatory if the price change is one dollar of more; for 
securities between $10 and $99.99, indications are required for 
price movements of the lesser of 10% or three dollars; and for 
securities over $100, indications are required for price movements 
of five dollars or more.
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    Proposed Rule 123D(a)(6) would describe under which circumstances 
the Exchange would cancel orders after opening on a trade or quote. A 
proposed in new Rule 123D(a)(6)(A), all unexecuted Market Orders, MOO 
Orders, and LOO Orders would be cancelled. This would be new behavior 
following an Exchange-facilitated open because under a DMM-facilitated 
open, all Market and MOO Orders are guaranteed to participate and 
therefore there would not be any unexecuted Market Orders or MOO Orders 
following an opening. Proposed Rule 123D(a)(6)(B) would provide that 
after an opening on a trade, buy (sell) Limit Orders priced higher 
(lower) than the opening price would be cancelled. Lastly, proposed 
Rule 123D(a)(6)(C) would provide that if interest would have paired off 
at a price below (above) the lower (upper) boundary of the Opening 
Price Range, after opening on a quote, sell (buy) Limit Orders would be 
cancelled. The Exchange proposes to cancel only the side of the orders 
that would cause an opening price to be outside of the Opening Price 
Range parameters; the other side would not be cancelled and would be 
included in the opening quote.
    The Exchange also proposes to delete current Rule 123D(4), which 
sets forth a non-regulatory trading halt condition designated 
``Structured Products.'' Rule 123D(4) was adopted to permit the halting 
of trading of exchange traded funds (``ETFs'') and structured products 
on the Exchange to facilitate the closing of the Exchange's former 
trading floor in connection with the acquisition of the Exchange by 
NYSE Euronext in 2008. Orders in ETFs and structured products subject 
to the trading halt condition are routed from the Exchange to its 
affiliate NYSE Arca, Inc. (``NYSE Arca'').\14\ The condition permits 
the Exchange to halt ETFs or structured products that remain listed on 
the Exchange.\15\ All Exchange-listed ETFs and structured products have 
transferred to NYSE Arca and are no longer traded on the Exchange, 
rendering Rule 123D(4) moot.\16\
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    \14\ See Securities Exchange Act Release No. 58824 (October 21, 
2008), 73 FR 63754 (October 27, 2008) (SR-NYSEALTR-2008-02). See 
also Securities Exchange Act Release No. 58705 (October 1, 2008), 73 
FR 58995 (October 8, 2008) (SR-Amex-2008-63).
    \15\ See id.
    \16\ The Exchange also proposes to amend current Rule 123D(2) to 
replace single quotation marks with double quotation marks around 
the term ``Equipment Changeover'' and to delete current Rule 
123D(3), which is marked ``Reserved.''
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    Because of the technology changes associated with the proposed rule 
change, the Exchange proposes to announce the implementation date via 
Trader Update.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\17\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\18\ in particular, because it 
is designed to prevent fraudulent and manipulative acts and practices, 
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 protect investors and the public interest. The 
Exchange believes that permitting the Exchange to electronically open 
trading would remove impediments to and perfect the mechanism of a free 
and open market and a national market system by ensuring an orderly 
open if the registered DMM cannot manually or electronically facilitate 
the open of trading as required under Rule 104(a). Similarly, the 
proposal promotes just and equitable principles of trade and removes 
impediments to and perfects the mechanism of a free and open market by 
providing customers and the investing public with the certainty of an 
open in circumstances where business continuity disruptions or other 
emergencies would prevent the assigned DMMs from opening a security. 
For the same reasons, the proposal is also designed to protect 
investors as well as the public interest.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendment to Rule 
123D(a)(3) to provide that openings effected by the Exchange would be 
within a proposed numerical guideline would remove impediments to and 
perfect the mechanism of a free and open market because, similar to how 
Nasdaq and NYSE Arca Equities function, it would enable the Exchange to 
set parameters for an opening to assure that the potential prices that 
a security may open would not be significantly away from the Reference 
Price. Similarly, the Exchange believes that excluding interest 
eligible for the open that would cause an execution to occur outside 
the Opening Price Range parameters, even if such interest would 
otherwise be required to be included in an open effected by a DMM, 
would remove impediments to and perfect the mechanism of a fair and 
orderly market because it would assure that the Exchange could effect 
the open within the proposed specified price ranges. The proposed rule 
therefore promotes just and equitable principles of trade because it 
provides transparency to entering firms of whether interest would be 
eligible to participate in a closing transaction effected by the 
Exchange.
    Finally, deleting an obsolete halt condition in Rule 123D(4) 
removes impediments to and perfects the mechanism of a free and open 
market by removing confusion that may result from having obsolete 
references in the Exchange's rulebook. The Exchange further believes 
that the proposal removes impediments to and perfects the mechanism of 
a free and open market by ensuring that persons subject to the 
Exchange's jurisdiction, regulators, and the investing public, can more 
easily navigate and understand the Exchange's rulebook. The Exchange 
believes that eliminating obsolete references would not be inconsistent 
with the public interest and the protection of investors because 
investors will not be harmed and in fact would benefit from increased 
transparency, thereby reducing potential confusion. Removing such 
obsolete references will also further the goal of transparency and add 
clarity to the Exchange's rules.

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. The proposed rule change is 
not intended to address competitive issues but rather enable the 
Exchange to open trading where circumstances would prevent a DMM from 
facilitating an open.

[[Page 67833]]

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 Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \19\ and Rule 19b-4(f)(6) thereunder.\20\ 
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 prior to 
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 and Rule 19b-
4(f)(6)(iii) thereunder.
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    \19\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \20\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \21\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\22\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest.
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    \21\ 17 CFR 240.19b-4(f)(6).
    \22\ 17 CFR 240.19b-4(f)(6)(iii).
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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-2015-81 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEMKT-2015-81. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at 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 referto File Number SR-NYSEMKT-2015-
81, and should be submitted on or before November 24, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-27909 Filed 11-2-15; 8:45 am]
 BILLING CODE 8011-01-P