[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Notices]
[Pages 70852-70855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28864]



[[Page 70852]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76395; File No. SR-NYSEARCA-2015-106]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Adopt a 
Principles-Based Approach To Prohibit the Misuse of Material Nonpublic 
Information by Lead Market Makers (``LMMs'') by Deleting Rule 6.83

November 9, 2015.
    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 October 28, 2015, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``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\ 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 adopt a principles-based approach to 
prohibit the misuse of material nonpublic information by Lead Market 
Makers (``LMMs'') by deleting Rule 6.83. 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 adopt a principles-based approach to 
prohibit the misuse of material nonpublic information by LMMs by 
deleting Rule 6.83.
    The Exchange believes that Rule 6.83 is no longer necessary because 
all OTP Holders and OTP Firms (collectively, ``OTPs''),\4\ including 
LMMs, are subject to the Exchange's general principles-based 
requirements governing the protection against the misuse of material, 
non-public information, pursuant to Exchange Rule 11.3 (Prevention of 
the Misuse of Material, Nonpublic Information). This rule obviates the 
need for separately-prescribed requirements for a subset of market 
participants on the Exchange.
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    \4\ An ``OTP'' is an Options Trading Permit issued by the 
Exchange for effecting approved securities transactions on the 
Exchange's Trading Facilities; OTP Holders and OTP Firms are natural 
persons or business entities, respectively, that have one or more 
OTP. See Rule 1.1(p)-(r).
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Background
    The Exchange has two classes of registered market makers. Pursuant 
to Rule 6.32(a), a Market Maker is an individual who is registered with 
the Exchange for the purpose of making transactions as a dealer-
specialist on the Floor of the Exchange or for the purpose of 
submitting quotes electronically and making transactions as a dealer-
specialist through the NYSE Arca OX electronic trading system. As the 
rule further provides, a Market Maker registered on the Exchange will 
be either a Market Maker or a Lead Market Maker.\5\
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    \5\ Unless specified, or unless the context requires otherwise, 
the term Market Maker refers to both Market Makers and Lead Market 
Maker. See Rule 6.32(a).
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    Rule 6.82(c) specifies the obligations of LMMs, which, in addition 
to the Market Maker obligations of Rules 6.37 and 6.37A, must also 
honor guaranteed markets. The quoting obligations of all Market Makers, 
including LMMs, are set forth in Rule 6.37B. That rule sets forth the 
main difference between Market Makers and LMMs, namely that LMMs have a 
heightened quoting obligation as compared to Market Makers.\6\ In 
addition to a heightened quoting obligation, pursuant to Rule 6.76A 
(Order Execution--OX), LMMs quoting at the NBBO are eligible to receive 
a guaranteed participation allocation in the execution of incoming bids 
and offers.\7\
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    \6\ Compare Rule 6.37B(b) (An LMM ``must provide continuous two-
sided quotations throughout the trading day in its appointed issues 
for 90% of the time the Exchange is open for trading in each 
issue''[sic] with 6.37B(c) (``A Market Maker must provide continuous 
two-sided quotations throughout the trading day in its appointed 
issues for 60% of the time the Exchange is open for trading in each 
issue'').
    \7\ See Rule 6.76A(a)(1)(A).
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    Importantly, all Market Makers, including LMMs, have access to the 
same information in the Consolidated Book that is available to all 
other market participants. Moreover, none of the Exchange's Market 
Makers, including LMMs, have agency obligations to orders in the 
Exchange's Consolidated Book. As such, the key distinctions between 
Market Makers and LMMs are the quoting requirements set forth in Rule 
6.37B and allocation guarantee for LMMs set forth in Rule 6.76A.
    Notwithstanding that all Market Makers have access to the same 
Exchange trading information as all other market participants on the 
Exchange, the Exchange has specific rules governing how LMMs may 
operate. Rule 6.83 prohibits OTPs affiliated with an LMM from 
purchasing or selling any option to which the LMM is appointed, except 
to reduce or liquidate positions after appropriate identification and 
Trading Official approval of the transaction. The rule further provides 
an exemption from the prohibition for affiliated firms that implement 
specified Exchange-approved procedures to restrict the flow of 
material, non-public information. Rules 6.83(e)--(j) outline the 
``Exemption Guidelines'' with which an affiliated firm must comply to 
obtain an exemption from the restriction in Rule 6.83. These specified 
``Exemption Guidelines'' are meant to ensure that an LMM will not have 
access to material, non-public information possessed by its affiliated 
OTP(s), and that a firm will not misuse its affiliated LMM's material, 
non-public information.
Proposed Rule Change
    The Exchange believes that the guidelines in Rule 6.83 for LMMs are 
no longer necessary and proposes to delete the Rule in its entirety. 
The Exchange believes that Rule 11.3, governing the misuse of material, 
non-public information, provides for an appropriate, principles-based 
approach to prevent the market abuses Rule 6.83 was designed to 
address. Specifically, Rule 11.3 requires every OTP to establish, 
maintain, and enforce written policies and procedures reasonably 
designed to prevent the misuse of material, non-public information by 
such OTP or associated persons. For

[[Page 70853]]

purposes of this requirement, 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.\8\
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    \8\ See Commentary .01 to Rule 11.3.
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    Because LMMs are already subject to the requirements of Rule 11.3, 
the Exchange does not believe that it is necessary to separately 
require specific limitations on dealings between LMMs and their 
affiliates. Deleting Rule 6.83 would provide LMMs with the flexibility 
to adapt their policies and procedures as appropriate to reflect 
changes to their business model, business activities, or the securities 
market in a manner similar to how Market Makers on the Exchange 
currently operate and consistent with Rule 11.3.
    As noted above, LMMs are distinguished under Exchange rules from 
other types of Market Makers in that LMMs have heightened obligations 
and allocation guarantees. However, none of these heightened 
obligations provides different or greater access to nonpublic 
information than any other market participant on the Exchange.\9\ 
Specifically, LMMs on the Exchange do not have access to trading 
information provided by the Exchange, either at, or prior to, the point 
of execution, that is not made available to all other market 
participants on the Exchange in a similar manner. Further, as noted 
above, LMMs on the Exchange do not have any agency responsibilities for 
orders in the Consolidated Book. Accordingly, because LMMs do not have 
any trading advantages at the Exchange due to their market role, the 
Exchange believes that they should be subject to the same rules 
regarding the protection against the misuse of material non-public 
information, which in this case, is existing Rule 11.3.\10\
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    \9\ See Rules 6.37B and 6.76A.
    \10\ The Exchange notes that by deleting Rule 6.83, the Exchange 
would no longer require specific information barriers for LMMs or 
require pre-approval of any information barriers that an LMM would 
erect for purposes of protecting against the misuse of material non-
public information. However, as is the case today with Market 
Makers, information barriers of new entrants, including new LMMs, 
would be subject to review as part of a new firm application. 
Moreover, the policies and procedures of LMMs, including those 
relating to information barriers, would be subject to review by 
FINRA, on behalf of the Exchange, pursuant to a Regulatory Services 
Agreement.
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    The Exchange notes that even with this proposed rule change, 
pursuant to Rule 11.3, an LMM would still be obligated to ensure 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, including being reasonably designed to protect against 
the misuse of material, non-public information. While information 
barriers would not specifically be required under the proposal, Rule 
11.3 already requires that an OTP consider its business model or 
business activities in structuring its policies and procedures, which 
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.
    The Exchange 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 an LMM could share with such LMM. In that regard, the 
proposed rule change will not permit the affiliates of LMMs to have 
access to any non-public order or quote information of the LMM, 
including hidden or undisplayed size or price information of such 
orders or quotes. Affiliates of LMMs would only have access to orders 
and quotes that are publicly available to all market participants. OTPs 
do not expect to receive any additional order or quote information as a 
result of this proposed rule change.
    Further, the Exchange does not believe that there will be any 
material change to Market Maker information barriers as a result of 
removal of the Exchange's pre-approval requirements. In fact, the 
Exchange anticipates that eliminating the pre-approval requirement 
should facilitate implementation of changes to Market Maker 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 LMMs do not have agency 
responsibilities to orders in the Consolidated Book, or time and place 
information advantages because of their market role. However, as is the 
case today with Market Makers, information barriers of new entrants 
would be subject to review as part of a new firm application. Moreover, 
the policies and procedures of market makers, including those relating 
to information barriers, would be subject to review by FINRA, on behalf 
of the Exchange, pursuant to a Regulatory Services Agreement.
    The Exchange further notes that under Rule 11.3, an OTP would be 
able to structure its firm to provide for its options LMMs, or Market 
Makers, as applicable, to be structured with its equities and customer-
facing businesses, provided that any such structuring would be done in 
a manner reasonably designed to protect against the misuse of material, 
non-public information. For example, pursuant to Rule 11.3, a Market 
Maker on the Exchange could be in the same independent trading unit, as 
defined in Rule 200(f) of Regulation SHO,\11\ as an equities market 
maker and other trading desks within the firm, including options 
trading desks, so that the firm could share post-trade information to 
better manage its risk across related securities. The Exchange believes 
it is appropriate, and consistent with Rule 11.3 and Section 15(g) of 
the Act \12\ for a firm to 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. The Exchange 
notes, however, that if so structured, a firm would need to have 
appropriate policies and procedures, including information barriers as 
applicable, to protect against the misuse of material non-public 
information, and specifically customer information, consistent with 
Rule 11.3.
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    \11\ 17 CFR part 242.200(f).
    \12\ 15 U.S.C. 78o(g).
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    The Exchange believes that the proposed reliance on the principles-
based Rule 11.3 would help ensure that an OTP that operates an LMM 
would be required to protect against the misuse of any material non-
public information. As noted above, Rule 11.3 already requires that 
firms refrain from trading while in possession of material non-public 
information concerning imminent transactions in the security or related

[[Page 70854]]

product. The Exchange believes that moving to a principles-based 
approach rather than prescribing how and when to wall off an LMM from 
the rest of the firm would provide OTPs operating LMMs with appropriate 
tools to better manage risk across a firm, including integrating 
options positions with other positions of the firm or, as applicable, 
by the respective independent trading unit. Specifically, the Exchange 
believes that it is appropriate for risk management purposes for an OTP 
operating an LMM to be able to consider both options LMMs' traded 
positions for purposes of calculating net positions consistent with 
Rule 200 of Regulation SHO, calculating intra-day net capital 
positions, and managing risk both generally as well as in compliance 
with Rule 15c3-5 under the Act (the ``Market Access Rule'').\13\ The 
Exchange notes that any risk management operations would need to 
operate consistent with the requirement to protect against the misuse 
of material non-public information.
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    \13\ 17 CFR part 240.15c3-5.
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    The Exchange further notes that if LMMs are integrated with other 
market making operations, they would be subject to existing rules that 
prohibit OTPs 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. As such, an 
OTP that integrates its LMM operations together with equity market 
making would need to protect customer information consistent with 
existing obligations to protect such information. The Exchange has 
rules prohibiting OTPs from disadvantaging their customers or other 
market participants by improperly capitalizing on the OTP's access to 
or receipt of material, non-public information. For example, Rule 11.18 
requires OTPs 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. 
Additionally, Rule 6.49 prevents an OTP or person associated with an 
OTP, 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 circumstances are 
met.\14\
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    \14\ See Rule 6.49(b).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \15\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \16\ in particular, in that it is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, 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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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change would remove 
impediments to and perfect the mechanism of a free and open market by 
adopting a principles-based approach to permit an OTP operating an LMM 
to maintain and enforce policies and procedures to, among other things, 
prohibit the misuse of material non-public information and eliminating 
restrictions on how an OTP structures it LMM operations. The Exchange 
notes that the proposed rule change is based on an approved rule of the 
Exchange to which LMMs are already subject--Rule 11.3--and harmonizes 
the rules governing LMMs and Market Makers. Moreover, OTPs operating 
LMMs would continue to be subject to federal and Exchange requirements 
for protecting material non-public order information.\17\ The Exchange 
believes that the proposed rule change would remove impediments to and 
perfect the mechanism of a free and open market because it would 
harmonize the Exchange's approach to protecting against the misuse of 
material nonpublic information and no longer subject LMMs to additional 
requirements. The Exchange does not believes that the existing 
requirements applicable to LMMs are narrowly tailored to their 
respective roles because neither market participant has access to 
Exchange trading information in a manner different from any other 
market participant on the Exchange and they do not have agency 
responsibilities to the Consolidated Book.
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    \17\ See 15 U.S.C. 78o(g) and Rule 11.3.
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    The Exchange further believes the proposal is designed to prevent 
fraudulent and manipulative acts and practices and to promote just and 
equitable principles of trade because existing rules make clear to LMMs 
and OTPs the type of conduct that is prohibited by the Exchange. While 
the proposal eliminates requirements relating to the misuse of material 
non-public information, LMMs and OTPs would remain subject to existing 
Exchange rules requiring them to establish and maintain systems to 
supervise their activities, and to create, implement, and maintain 
written procedures that are reasonably designed to comply with 
applicable securities laws and Exchange rules, including the 
prohibition on the misuse of material, nonpublic information.
    The Exchange notes that the proposed rule change would still 
require that OTPs operating LMMs maintain and enforce policies and 
procedures reasonably designed to ensure compliance with applicable 
federal securities laws and regulations and with Exchange rules. Even 
though there would no longer be pre-approval of LMM information 
barriers, any LMM written policies and procedures would continue to be 
subject to oversight by the Exchange and therefore the elimination of 
prescribed restrictions should not reduce the effectiveness of the 
Exchange rules to protect against the misuse of material non-public 
information. Rather, OTPs will be able to utilize a flexible, 
principles-based approach to modify their policies and procedures as 
appropriate to reflect changes to their business model, business 
activities, or to the securities market itself. Moreover, while 
specified information barriers may no longer be required, an OTP's 
business model or business activities may dictate that an information 
barrier or functional separation be part of the appropriate set of 
policies and procedures that would be reasonably designed to achieve 
compliance with applicable securities laws and regulations, and with 
applicable Exchange rules. The Exchange therefore believes that the 
proposed rule change will maintain the existing protection of investors 
and the public interest that is currently applicable to LMMs, while at 
the same time removing impediments to and perfecting a free and open 
market by moving to a principles-based approach to protect against the 
misuse of material non-public information.

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

    In accordance with Section 6(b)(8) of the Act,\18\ the Exchange 
does not believe that the proposed rule change would impose any burden 
on competition that is not necessary or appropriate in furtherance of 
the purposes of the Act. To the contrary, the Exchange believes that 
the proposal will enhance competition by allowing Market Makers to 
comply with applicable Exchange

[[Page 70855]]

rules in a manner best suited to their business models, business 
activities, and the securities markets, thus reducing regulatory 
burdens while still ensuring compliance with applicable securities laws 
and regulations and Exchange rules. The Exchange believes that the 
proposal will foster a fair and orderly marketplace without being 
overly burdensome upon Market Makers.
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    \18\ 15 U.S.C. 78f(b)(8).
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    Moreover, the Exchange believes that the proposed rule change would 
eliminate a burden on competition for OTPs which currently exists as a 
result of disparate rule treatment between the options and equities 
markets regarding how to protect against the misuse of material non-
public information. For those OTPs that are also members of equity 
exchanges, their respective equity market maker operations are now 
subject to a principles-based approach to protecting against the misuse 
of material non-public information.\19\ The Exchange believes it would 
remove a burden on competition to enable OTPs to similarly apply a 
principles-based approach to protecting against the misuse of material 
nonpublic information in the options space. To this end, the Exchange 
notes that Rule 11.3 still requires an OTP that operates as a Market 
Maker on the Exchange, including an LMM, to evaluate its business to 
assure that its policies and procedures are reasonably designed to 
protect against the misuse of material nonpublic information. However, 
with this proposed rule change, an OTP that trades equities and options 
could look at its firm more holistically to structure its operations in 
a manner that provides it with better tools to manage its risks across 
multiple security classes, while at the same time protecting against 
the misuse of material non-public information.
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    \19\ See Securities Exchange Act Release Nos. 60604 (Sept. 2, 
2009), 76 FR 46272 (Sept. 8, 2009) (SR-NYSEArca-2009-78) (Order 
approving elimination of NYSE Arca rule that required market makers 
to establish and maintain specifically prescribed information 
barriers, including discussion of NYSE Arca and Nasdaq rules) 
(``Arca Approval Order''); 61574 (Feb. 23, 2010), 75 FR 9455 (Mar. 
2, 2010) (SR-BATS-2010-003) (Order approving amendments to BATS Rule 
5.5 to move to a principles-based approach to protecting against the 
misuse of material, non-public information, and noting that the 
proposed change is consistent with the approaches of NYSE Arca and 
Nasdaq) (``BATS Approval Order''); and 72534 (July 3, 2014), 79 FR 
39440 (July 10, 2014), SR-NYSE-2014-12) (Order approving amendments 
to NYSE Rule 98 governing designated market makers to move to a 
principles-based approach to prohibit the misuse of material non-
public information) (``NYSE Approval Order'').
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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 \20\ and Rule 19b-4(f)(6) thereunder.\21\ 
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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    \20\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \21\ 17 CFR 240.19b-4(f)(6).
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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) \22\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \22\ 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-NYSEARCA-2015-106 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-NYSEARCA-2015-106. 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 20549-1090, on official business days between the hours 
of 10:00 a.m. and 3:00 p.m. 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-NYSEARCA-2015-106 and should be submitted on or before 
December 7, 2015.
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    \23\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-28864 Filed 11-13-15; 8:45 am]
BILLING CODE 8011-01-P