[Federal Register Volume 82, Number 30 (Wednesday, February 15, 2017)]
[Notices]
[Pages 10828-10832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02994]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79998; File No. SR-NYSEMKT-2017-05]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of 
Proposed Rule Change Amending Rules 7.29E and 1.1E To Provide for a 
Delay Mechanism

February 9, 2017.
    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 January 27, 2017, 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 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 amend Rules 7.29E and 1.1E to provide for 
a Delay Mechanism. 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.

[[Page 10829]]

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 Rules 7.29E and 1.1E to provide for 
an intentional delay to specified order processing, which would be 
referred to as the ``Delay Mechanism.''
    To effect its transition to Pillar, the Exchange has adopted the 
rule numbering framework of the NYSE Arca Equities, Inc. (``NYSE Arca 
Equities'') rules for Exchange cash equities trading on the Pillar 
trading platform.\4\ As described in the Framework Filing, the Exchange 
is denoting the rules applicable to cash equities trading on Pillar 
with the letter ``E'' to distinguish such rules from current Exchange 
rules with the same numbering.
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    \4\ See Securities Exchange Act Release No. 79242 (November 4, 
2016), 81 FR 79081 (November 10, 2016) (SR-NYSEMKT-2016-97) (Notice 
and Filing of Immediate Effectiveness of Proposed Rule Change) (the 
``Framework Filing''). In addition, the Exchange has filed a 
proposed rule change to support Exchange trading of securities 
listed on other national securities exchanges on an unlisted trading 
privileges basis, including Exchange Traded Products (``ETP'') 
listed on other exchanges. See Securities Exchange Act Release No. 
79400 (November 25, 2016), 81 FR 86750 (December 1, 2016) (SR-
NYSEMKT-2016-103) (Notice) (the ``ETP Listing Rules Filing'').
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    The Exchange has also proposed trading rules for cash equity 
trading on Pillar, which are based on the trading rules of NYSE Arca 
Equities.\5\ With Pillar, the Exchange has proposed to transition its 
cash equities trading platform from a Floor-based market with a parity 
allocation model to a fully automated price-time priority allocation 
model that trades all NMS Stocks.
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    \5\ See SR-NYSEMKT-2017-1 (the ``Trading Rules Filing''). The 
Exchange has also filed a proposed rule change to establish market 
maker obligations when trading on the Pillar trading platform. See 
SR-NYSEMKT-2017-04 (the ``Market Maker Filing''). After the 
Commission approves the ETP Listing Rules Filing, Market Maker 
Filing, and Trading Rules Filing, the Exchange will transition to 
Pillar on a date announced by Trader Update.
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    The Exchange proposes a delay mechanism on Pillar that would add 
the equivalent of 350 microseconds of latency to inbound and outbound 
order messages, as described in greater detail below. The requirements 
for the proposed Delay Mechanism would be set forth in Rule 7.29E, and 
a definition of ``Delay Mechanism'' would be in Rule 1.1E. The 
Exchange's proposed Delay Mechanism is based in part on the operation 
of the intentional delay mechanism of Investors Exchange LLC (``IEX''). 
In addition, when the Exchange implements the Delay Mechanism, it would 
no longer offer Add Liquidity Only (``ALO'') Order or Day Intermarket 
Sweep Order (``ISO'') functionality and all Pegged Orders would not be 
displayed.\6\
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    \6\ In the Trading Rules Filing, the Exchange proposes Rule 
7.31E (Orders and Modifiers), which is based on NYSE Arca Equities 
Rule 7.31. Therefore, as proposed, ALO Order, Day ISO Order, and 
Pegged Order functionality for the Exchange would be based on NYSE 
Arca Equities ALO, Day ISO, and Pegged Order functionality, 
including that Primary Pegged Orders would be required to have a 
minimum display quantity. Because the Exchange would transition to 
Pillar once the Commission approves the ETP Listing Rules Filing, 
Market Maker Filing, and Trading Rules Filing, which may be prior to 
approval of the Delay Mechanism, before implementing the Delay 
Mechanism, the Exchange will file a separate proposed rule change to 
eliminate ALO and Day ISO Orders and related functionality and to 
provide that Primary Pegged Orders would not be displayed.
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Proposed Rule Changes
    As noted above, the proposed Delay Mechanism would function 
similarly to the intentional delay mechanism of IEX, which IEX refers 
to as the ``IEX POP.'' The IEX POP adds the equivalent of 350 
microseconds of latency between the network access point of the POP and 
IEX's matching engines at its primary data center.\7\ IEX uses a 
hardware solution to add its intentional delay via physical distance 
and coiled optical fiber. Similarly, using a software solution, the 
Exchange proposes that the Delay Mechanism would add 350 microseconds 
of latency to the processing of specified inbound and outbound 
communications.
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    \7\ See IEX Rule 11.510 (Connectivity).
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    As described in greater detail below, except when routing orders, 
the Exchange's proposed Delay Mechanism would provide for the addition 
of latency under the same circumstances as the IEX POP.
    The Exchange proposes to add paragraph (y) to Rule 1.1E, which is 
currently ``Reserved,'' to define ``Delay Mechanism.'' As proposed, the 
Delay Mechanism would mean a delay that is an equivalent of 350 
microseconds of latency that is added to specified order processing. 
This delay would be in addition to any natural latency inherent in 
accessing the Exchange and Away Markets.\8\
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    \8\ The term ``Away Market'' is defined in Rule 1.1E(ff) to mean 
any exchange, alternate trading system (``ATS'') or other broker-
dealer (1) with which the Exchange maintains an electronic linkage 
and (2) that provides instantaneous responses to orders routed from 
the Exchange and that the Exchange will designate from time to time 
those ATS's or other broker-dealers that qualify as Away Markets.
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    Proposed Rule 1.1E(y) would further provide that due to force 
majeure events and acts of third parties, the Exchange does not 
guarantee that the delay would always be 350 microseconds and that the 
Exchange would periodically monitor such latency, and would make 
adjustments to the latency as reasonably necessary to achieve 
consistency with the 350 microsecond target as soon as commercially 
practicable. The proposed rule would further provide that, if the 
Exchange determines to increase or decrease the delay period, it would 
submit a rule filing pursuant to Section 19 of the Act. This proposed 
rule text is based on Supplementary Material .20 [sic] (POP Latency) to 
IEX Rule 11.510 without any substantive differences.
    The Exchange proposes to add paragraph (b) to Rule 7.29E to 
describe the Delay Mechanism.\9\ Under proposed Rule 7.29E(b)(1), the 
Exchange would apply the Delay Mechanism to the following:
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    \9\ In the Trading Rules Filing, the Exchange has proposed that 
Rule 7.29E would be titled ``Access'' and has proposed paragraph (a) 
to Rule 7.29E to specify the general access requirements to the 
Exchange.
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     All inbound communications from an ETP Holder (proposed 
Rule 7.29E(b)(1)(A)). This proposed rule text is based on IEX Rule 
11.510(b)(1), which provides that ``Inbound POP Latency'' applies to 
all inbound communications (including, without limitation, order 
messages and cancel messages). The Exchange's proposal to apply the 
Delay Mechanism to all inbound communications from an ETP Holder would 
cover all incoming orders, as well as any requests to cancel or modify 
a resting order. The Exchange's proposal to apply the Delay Mechanism 
to all inbound communications from an ETP Holder would have the same 
effect as IEX's Inbound POP Latency because it would add 350 
microseconds of delay to all incoming messages to the Exchange.
     All outbound communications to an ETP Holder (proposed 
Rule 7.29E(b)(1)(B)). This proposed rule text is based on IEX Rule 
11.510(b)(2), which provides that ``Outbound POP Latency'' applies to 
all outbound communications (including, without limitation, execution 
report messages and quote update messages). The Exchange's proposal to 
apply the Delay Mechanism to all outbound communications to an ETP 
Holder would cover Exchange messages to an ETP Holder that an order has 
been accepted, rejected, cancelled, modified, or executed. The 
Exchange's proposal to apply the Delay Mechanism to all outbound 
communications to an ETP Holder would have the same effect as IEX's 
Outbound POP Latency because it would add 350 microseconds of delay to 
all outgoing messages to an ETP Holder from the Exchange. Together with 
the application of the proposed Delay Mechanism to all inbound

[[Page 10830]]

communications to the Exchange, there would be 700 microseconds of 
additional round-trip latency in a report received by an ETP Holder of 
an execution or partial execution on the Exchange.
     All outbound communications the Exchange routes to an Away 
Market (proposed Rule 7.29E(b)(1)(C)) and all inbound communications 
from an Away Market about a routed order (proposed Rule 
7.29E(b)(1)(D)). Under proposed Rule 7.37E, the Exchange determines 
whether to route an order after it has matched orders for execution 
against orders in the Exchange Book.\10\ If the Exchange determines to 
route an order, either because it would trade through a protected 
quotation or has an instruction to be routed to a primary listing 
market, the Exchange would apply the Delay Mechanism before routing 
such order. This proposed rule text would therefore provide that an 
order that the Exchange routes to an Away Market would have 700 
microseconds of added delay before it is routed: First a 350 
microsecond delay before the order is received by the Exchange's 
matching engines under proposed Rule 7.29E(b)(1)(A) and a second 350 
microsecond delay under proposed Rule 7.29E(b)(1)(C) when the order is 
routed. After the Exchange applies the Delay Mechanism to a routable 
order, the routed order would be subject to any natural latency 
inherent in accessing such Away Market.
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    \10\ See proposed Rule 7.37E(b), Trading Rules Filing, supra 
note 5 (``Unless an order has an instruction not to route, after 
being matched for execution with any contra-side orders in the 
Exchange Book pursuant to paragraph (a) of this Rule, marketable 
orders will be routed to Away Market(s).'')
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    Any inbound communications to the Exchange from the Away Market 
about such routed order, whether a rejection or execution report, would 
also be subject to the Delay Mechanism. In addition, any such report 
forwarded to the ETP Holder that entered the order would then be 
subject to an additional Delay Mechanism under proposed Rule 
7.29E(b)(1)(B). Accordingly, the Exchange would add a total of 1,400 
microseconds of round-trip delay to an order that the Exchange routes 
to an Away Market. The Exchange's proposed Delay Mechanism for orders 
that route would function differently from the IEX POP with respect to 
routable orders. Under IEX Rule 11.510, a routable order on IEX must 
traverse the IEX POP to access IEX's routing logic, and any orders that 
the IEX routing logic determines to send to the IEX matching engine 
must traverse an additional IEX POP. However, IEX does not include an 
IEX POP between its routing logic and routing to markets other than 
IEX.\11\ Accordingly, a routable order sent to IEX has 700 microseconds 
of delay before it reaches the IEX matching engine and an additional 
700 microseconds of delay before any reports from the IEX matching 
engine are sent to the order sender, for a round-trip delay of 1,400 
microseconds. However, a routable order sent to IEX's routing logic 
that is routed to an away market has only 350 microseconds of 
additional delay for inbound orders and only 350 microseconds of delay 
for outbound information to the order sender, for a round-trip delay of 
700 microseconds.
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    \11\ See IEX Rule 11.510(c)(3)(A).
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    The Exchange believes its proposed application of the Delay 
Mechanism to routable orders is consistent with how the Exchange 
already functions, which is that orders are matched for execution 
before routing (unless the order has an instruction to route to the 
primary listing market). As such, if there is an execution opportunity 
on the Exchange, an order would be subject to the same additional 
latency regardless of whether the order is routable or not. Only if the 
Exchange were to route an order would it add the latency of the Delay 
Mechanism a second time. The Exchange believes that this additional 
application of the proposed Delay Mechanism would ensure that the 
Exchange would not have a speed advantage over ETP Holders in routing 
the unexecuted quantity of an order to an Away Market. Specifically, an 
ETP Holder would be subject to the same latency in learning of an 
execution on the Exchange (350 microseconds after the execution) as the 
Exchange would apply to routing such order (350 microseconds before 
routing such order). Accordingly, an ETP Holder that would rather route 
directly to Away Markets would be able to operate on a level playing 
field with the Exchange's routing broker.
     All outbound communications (e.g., bids, offers, and 
trades) to the Exchange's proprietary data feeds (proposed Rule 
7.29E(b)(1)(E)). This proposed rule text is based on IEX Rule 
11.510(b)(1) [sic], which specifies IEX's Outbound POP Latency. The 
Exchange's proposal to apply the Delay Mechanism to all outbound 
messages to its proprietary data feeds would have the same effect as 
IEX's Outbound POP Latency because it would add 350 microseconds of 
delay before providing such information to the Exchange's proprietary 
data feed.
    Under proposed Rule 7.29E(b)(2), the Exchange would not apply the 
Delay Mechanism to the following:
     All inbound communications from data feeds (proposed Rule 
7.29E(b)(2)(A)). This proposed rule text is based on IEX Rule 
11.510(c)(2)(A), which provides that IEX communications with away 
market centers to receive proprietary market data do not traverse the 
IEX POP, and IEX Rule 11.510(c)(2)(B), which provides that IEX 
communications with the SIPs to receive data feeds do not traverse the 
IEX POP. By referencing data feeds, proposed Rule 7.29E(b)(2)(A) would 
be applicable to data feeds received directly from Away Markets and 
data feeds disseminated by a plan processor. Accordingly, the 
Exchange's proposal not to apply the Delay Mechanism in these 
circumstances would have the same effect as how IEX does not apply the 
IEX POP to its receipt of market data.
     Order processing and order execution on the Exchange's 
Book (proposed Rule 7.29E(b)(2)(B)). This proposed rule text is based 
on IEX Rule 11.510(c)(1), which provides that order book processing 
does not traverse the IEX POP. Accordingly, all actions taken within 
the Exchange's Book, including calculating the BBO, NBBO, or PBBO,\12\ 
assigning working prices and working times to orders,\13\ and ranking 
and executing orders, would not be subject to an additional delay. The 
Exchange's proposal not to apply the Delay Mechanism to order 
processing and order execution on the Exchange's Book would have the 
same effect as how IEX conducts order processing and order execution 
within its book. For example, the Exchange would not apply the Delay 
Mechanism to re-price Pegged Orders, which would not be displayed on 
the Exchange. As with IEX, the Exchange would update the working price 
of Pegged Orders based on an updated PBBO without any additional delay.
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    \12\ The term ``BBO'' is defined in Rule 1.1E(h) as the best bid 
or offer that is a protected quotation on the Exchange. The terms 
``NBBO'' and ``PBBO'' are defined in Rule 1.1E(dd) as the national 
best bid or offer and the protected best bid and offer, 
respectively.
    \13\ In the Trading Rules Filing, supra note 5, the Exchange 
proposes to define the term ``working price'' in Rule 7.36E(a)(3) as 
the price at which an order is eligible to trade at any given time, 
which may be different from the limit price or display price of the 
order and define the term ``working time'' in Rule 7.36E(a)(4) as 
the effective time sequence assigned to an order for purposes of 
determining its priority ranking.
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     All outbound communications (e.g., bids, offers, and 
trades) to the plan processors under Rules 601 and 602 of Regulation 
NMS (proposed Rule

[[Page 10831]]

7.29E(b)(2)(C)). This proposed rule text is based on IEX Rule 
11.510(c)(3)(B), which provides that IEX communications with the SIP to 
disseminate quotation and last sale information do not traverse the IEX 
POP. The Exchange's proposal not to apply the Delay Mechanism to 
outbound communications to the plan processors would therefore have the 
same effect as how IEX operates.
    The Exchange proposes an additional difference between its proposed 
Delay Mechanism and the IEX POP. As set forth in Supplementary Material 
.10 [sic] to IEX Rule 11.510, IEX would not apply the IEX POP when 
trading out of its back up system because it does not offer 
connectivity from the IEX POP to its back up systems. By contrast, the 
Exchange proposes that the Delay Mechanism would be functional 
regardless of whether the Exchange is operating out of its primary or 
secondary data center.
* * * * *
    Subject to rule approvals, the Exchange will announce the 
implementation of the Delay Mechanism by Trader Update, which may be 
after the Exchange transitions to Pillar.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Securities Exchange Act of 1934 (the ``Act''),\14\ in general, and 
furthers the objectives of Section 6(b)(5),\15\ in particular, because 
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. The Exchange 
believes that the proposed rules to add the proposed Delay Mechanism 
would remove impediments to and perfect the mechanism of a free and 
open market because it would apply a similar delay to order message 
processing as the Commission has recently approved for IEX, with 
differences only with respect to how the Delay Mechanism would function 
for orders that route to an Away Market.\16\ The Exchange further 
believes that the proposed Delay Mechanism is not unfairly 
discriminatory because it would be applied uniformly to all Exchange 
ETP Holders and may not be bypassed for a fee or otherwise.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ Securities Exchange Act Release No. 78101 (June 17, 2016), 
81 FR 41141, 41155 (June 23, 2016) (``IEX Approval Order'').
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    The Exchange further believes that the proposed Delay Mechanism 
would remove impediments to and perfect the mechanism of a free and 
open market and a national market system and would protect investors 
and the public interest because it would provide a choice of exchanges 
for market participants that prefer to trade or list on an exchange 
that offers a delay mechanism.
    The Exchange also believes that the proposed Delay Mechanism, as it 
would apply to orders that are routed to Away Markets, would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system and would protect investors and the public 
interest because it is designed in a manner that would enable ETP 
Holders that would prefer to route unexecuted quantities of orders to 
Away Markets, rather than having the Exchange route to Away Markets, to 
operate on a level playing field. As such, this aspect of the proposed 
Delay Mechanism is not unfairly discriminatory and would not impose a 
burden on competition because the Exchange's outbound router would not 
have unique access or preferences with respect to orders routed to Away 
Markets. As such, the Exchange's outbound router functionality would be 
on substantively comparable terms to a third party routing broker that 
is a member of the Exchange.
    In addition, the Exchange believes that the proposed Delay 
Mechanism is consistent with the Commission's recent interpretation of 
Rule 611 of Regulation NMS.\17\ The Commission has interpreted the term 
``immediate'' when determining whether a trading center maintains an 
``automated quotation'' for purposes of Rule 611 to include response 
time delays at trading centers that are de minimis, whether intentional 
or not. As such, a trading center may implement an intentional access 
delay that is de minimis, i.e., a delay so short so as not to frustrate 
the purposes of Rule 611 of Regulation NMS by impairing fair and 
efficient access to an exchange's quotations. In the context of IEX, 
the Commission has already found that an intentional delay of 350 
microseconds is de minimis.\18\ Accordingly, the Exchange believes that 
its proposed Delay Mechanism, which would provide for the same delay 
period as the IEX POP under the same circumstances, is similarly de 
minimis for purposes of the Rule 611 Interpretation.
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    \17\ See Securities Exchange Act Release No. 78102 (June 17, 
2016), 81 FR 40785 (June 23, 2016) (File No. S7-03-16) (``Rule 611 
Interpretation'').
    \18\ See IEX Approval Order, supra note 16.
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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 change is 
designed to provide a competitive trading model to IEX. For this 
reason, the Exchange has proposed a Delay Mechanism that would function 
similarly to the IEX POP, with the exception of how the Delay Mechanism 
would be applied to routable orders. The Exchange believes that its 
proposed application of the Delay Mechanism to routable orders would 
not impose a burden on competition because it is designed in a manner 
that would enable ETP Holders that would prefer to route unexecuted 
quantities of orders to Away Markets, rather than having the Exchange 
route to Away Markets, to operate on a level playing field. The 
Exchange's proposal is therefore designed to promote competition by 
offering a choice of exchanges to those ETP Holders and issuers that 
prefer to trade or list on an exchange that offers a delay mechanism. 
Accordingly, the proposed rule change is designed to introduce 
additional competition among exchanges so that broker dealers and 
issuers have more than one option if seeking a trading venue that 
offers an intentional delay mechanism.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

[[Page 10832]]

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-2017-05 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-2017-05. 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 the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEMKT-2017-05 and should 
be submitted on or before March 8, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-02994 Filed 2-14-17; 8:45 am]
 BILLING CODE 8011-01-P