[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)]
[Notices]
[Pages 56890-56894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24732]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-84547; File No. SR-NYSEARCA-2018-77]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change To Amend Rule 7.44-E
November 7, 2018.
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 26, 2018, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'')
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 7.44-E, which sets forth the
Exchange's Retail Liquidity Program. The proposed change is available
on the Exchange's website 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
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend Rule 7.44-E, which sets forth the
Exchange's Retail Liquidity Program (the ``Program''), to: (i) Expand
the Program's availability to all securities traded on the Exchange;
(ii) remove unused functionality by eliminating the Type 2--Retail
Order and no longer permit Retail Price Improvement Orders (``RPI'') to
be designated as a Mid-Point Liquidity (``MPL'') Order; \3\ and (iii)
offer additional functionality to RPI Orders by allowing them to
include an optional offset.
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\3\ Rule 7.31-E(d)(3).
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The Exchange established the Program to attract retail order flow
to the Exchange, and allow such order flow to receive potential price
improvement.\4\ The Program is currently
[[Page 56891]]
limited to trades occurring at prices equal to and greater than $1.00 a
share. The program currently operates on a pilot basis and is set to
expire on December 31, 2018.
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\4\ See Securities Exchange Act Release No. 71176 (December 23,
2013), 78 FR 79524 (December 30, 2013) (SR-NYSEArca-2013-107) (``RLP
Approval Order'').
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Under Exchange Rule 7.44-E, a class of market participant called
Retail Liquidity Providers (``RLPs'') \5\ and non-RLP member
organizations are able to provide potential price improvement to retail
investor orders in the form of a non-displayed order that is priced
better than the best protected bid or offer (``PBBO''), called an RPI.
When there is an RPI in a particular security priced at least $0.001
better than the PBB or PBO, the Exchange disseminates an indicator,
known as the Retail Liquidity Identifier (``RLI''), that such interest
exists. Retail Member Organizations (``RMOs'') can submit a Retail
Order to the Exchange, which interacts, to the extent possible, with
available contra-side RPIs and orders with a working price between the
PBBO. The segmentation in the Program allows retail order flow to
receive potential price improvement as a result of their order flow
being deemed more desirable by liquidity providers.\6\
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\5\ The Program also allows for RLPs to register with the
Exchange. However, any firm can enter RPI orders into the system.
\6\ RLP Approval Order, 77 FR at 79528.
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Expansion of Program's Scope
The Exchange proposes to expand the Program's availability to all
securities traded on the Exchange. Today, the Program is limited to
NYSE Arca-listed securities and UTP Securities. Securities listed on
the New York Stock Exchange LLC (``NYSE'') are specifically excluded
from the Program. Rule 7.44-E(a)(4), therefore, states that a RPI Order
is ``non-displayed interest in NYSE Arca-listed securities and UTP
Securities, excluding NYSE-listed (Tape A) securities, that would trade
at prices better than the PBB or PBO by at least $0.001 and that is
identified as such.'' To expand the Program to all securities traded on
the Exchange, including NYSE-listed securities, the Exchange proposes
to amend Rule 7.44-E(a)(4) to provide that a RPI Order is ``non-
displayed interest that would trade at prices better than the PBB or
PBO by at least $0.001 and that is identified as such.'' This language
is similar to that of Cboe BYX Exchange, Inc. (``BYX''), which also
operates a retail price improvement program that is available to all
securities trading on BYX.\7\
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\7\ See BYX Rule 11.24(a)(3). See Securities Exchange Act
Release No. 68303 (November 27, 2012), 77 FR 71652 (December 3,
2012) (``BYX RPI Approval Order''). See also and NASDAQ Stock Market
LLC (``NASDAQ'') Rule 4780(a)(3). See Securities Exchange Act
Release No. 69837 (February 15, 2013), 78 FR 12397 (February 22,
2013) (``NASDAQ RPI Approval Order''). See also Securities Exchange
Act Release No. 75252 (June 22, 2015), 80 FR 36866 (June 26, 2015)
(SR-NASDAQ-2015-024) (removing NASDAQ's Retail Price Improvement
Program from its rules).
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Elimination of Type 2--Retail Orders
The Exchange proposes to amend Rule 7.44-E(k) to remove unused
functionality by eliminating the Type 2--Retail Order. As a result, the
Exchange would now offer a single category of Retail Orders. To date,
the Exchange has not received a Retail Order designated as Type 2 and,
therefore, proposes to no longer support this functionality.
Rule 7.44-E(a)(3) defines a ``Retail Order'' as an agency order or
a riskless principal order that meets the criteria of FINRA Rule
5320.03 that originates from a natural person and is submitted to the
Exchange by an RMO, provided that no change is made to the terms of the
order with respect to price or side of market and the order does not
originate from a trading algorithm or any other computerized
methodology. Under Rule 7.44-E(k), an RMO may designate how their
Retail Order interacts with available contra-side interest by
designating it as either a Type 1 or Type 2 Retail Order.
A Type 1--Retail Order to buy (sell) is a Limit Immediate-or-Cancel
(``IOC'') Order that will trade only with available Retail Price
Improvement Orders to sell (buy) and all other orders to sell (buy)
with a working price below (above) the PBO (PBB) on the NYSE Arca Book
and will not route. The quantity of a Type 1--Retail Order to buy
(sell) that does not trade with eligible orders to sell (buy) will be
immediately and automatically cancelled. A Type-1 designated Retail
Order will be rejected on arrival if the PBBO is locked or crossed.
A Type 2--Retail Order may be a Limit Order designated IOC or Day
or a Market Order, and functions as follows:
A Type 2--Retail Order IOC to buy (sell) is a Limit IOC
Order that will trade first with available Retail Price Improvement
Orders to sell (buy) and all other orders to sell (buy) with a working
price below (above) the PBO (PBB) on the NYSE Arca Book. Any remaining
quantity of the Retail Order will trade with orders to sell (buy) on
the NYSE Arca Book at prices equal to or above (below) the PBO (PBB)
and will be traded as a Limit IOC Order and will not route.
A Type 2--Retail Order Day to buy (sell) is a Limit Order
that will trade first with available RPI Orders to sell (buy) and all
other orders to sell (buy) with a working price below (above) the PBO
(PBB) on the NYSE Arca Book. Any remaining quantity of the Retail
Order, if marketable, will trade with orders to sell (buy) on the NYSE
Arca Book or route, and if non-marketable, will be ranked in the NYSE
Arca Book as a Limit Order.
A Type 2--Retail Order Market to buy (sell) is a Market
Order that will trade first with available Retail Price Improvement
Orders to sell (buy) and all other orders to sell (buy) with a working
price below (above) the NBO (NBB). Any remaining quantity of the Retail
Order will function as a Market Order.
The Exchange proposes to no longer offer the Type 2--Retail Order
and delete all references to it in Rule 7.44-E. Rule 7.44-E(k) would be
amended to delete subparagraph (2) that describes the operation of the
Type 2--Retail Order. The Exchange would continue to offer Type 1--
Retail Orders, which would be referred to as ``Retail Orders'' in Rule
7.44-E(k) and described as:
``[a] Retail Order to buy (sell) is a Limit IOC Order that will
trade only with available Retail Price Improvement Orders to sell
(buy) and all other orders to sell (buy) with a working price below
(above) the PBO (PBB) on the NYSE Arca Book and will not route. The
quantity of a Retail Order to buy (sell) that does not trade with
eligible orders to sell (buy) will be immediately and automatically
cancelled. A Retail Order will be rejected on arrival if the PBBO is
locked or crossed.''
The Exchange does not propose to amend the operation of Retail
Orders. The proposed text is substantially similar to current Rule
7.44-E(k)(1) with minor changes to remove references to ``Type 1''.
The Exchange also proposes to make related changes to Rule 7.44-
E(l). First, the last sentence in the first paragraph (l) would be
amended to no longer state that any remaining unfilled quantity of a
Retail Order posts to the NYSE Arca Book. Only Type 2--Retail Orders
designated as Day were able to be posted the NYSE Arca Book and would
no longer be offered by the Exchange. Retail Orders would be Limit IOC
orders and would either execute or be cancelled upon entry and,
therefore, never post to the NYSE Arca Book. As such, the last sentence
of the first paragraph Rule 7.44-E(l) would be amended to remove a
reference to posting to the NYSE Arca Book and state, ``[a]ny remaining
unfilled quantity of the Retail Order will cancel or execute [sic] in
accordance with Rule 7.44-E(k).'' The Exchange notes that treating all
Retail Orders as IOC is similar to that of BYX and the Exchange's
affiliate, NYSE, both of
[[Page 56892]]
which also operate retail price improvement programs that treats their
similar retail orders as IOC.\8\
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\8\ See NYSE Rule 107C(k). See also BYX Rule 11.24(f).
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The Exchange also proposes to remove from Rule 7.44-E(l) an example
that describes the operation of a Type 2--Retail Order and to replace
all references to Type 1--Retail Orders in the remaining examples with
the term Retail Order.
RPI Orders
The Exchange proposes to remove unused functionality by no longer
permitting RPI Orders to be designated as MPL Orders. The Exchange also
proposes to offer additional functionality to RPI Orders by allowing
them to include an optional offset.
RPIs are non-displayed and only execute against Retail Orders. RPIs
are generally entered at a single limit price, rather than being pegged
to the PBBO. One exception is that a RPI Order could also be designated
as an MPL Order, in which case the order would be pegged to the
midpoint of the PBBO and re-priced as the PBBO changes.
Designation as MPL Orders. The Exchange proposes to remove unused
functionality that permits RPI Orders to be designated as MPL Orders.
Rule 7.44-E(a)(4)(D) currently states that ``[a]n RPI must be
designated as either a Limit Non-Displayed Order or MPL Order, and an
order so designated will interact with incoming Retail Orders only and
will not interact with either a Type 2--Retail Order Day or Type 2--
Retail Order Market that is resting on the NYSE Arca Book.'' The
Exchange notes that to date all RPI Orders have been designated as Non-
Displayed Limit Orders, not MPL Orders.
As proposed, RPI Orders could no longer be designated as MPL
Orders. To effect this change, the Exchange proposes to revise the
above-referenced sentence from Rule 7.44-E(a)(4)(D) to provide instead
that ``[a]n RPI . . . will interact with incoming Retail Orders only.''
The remaining text of the current rule is no longer necessary because
the reference to Non-Displayed Limit Orders is superfluous as RPI
Orders by definition are non-displayed and must include a limit
price.\9\ Further, references to Type 2--Retail Orders are unnecessary
because they would no longer be offered by the Exchange, as proposed
above.
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\9\ Under Rule 7.44-E(a).
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Optional Offset Functionality. The Exchange proposes to allow RPIs
to include an optional offset. Rule 7.44-E(a)(4) would be amended to
include new paragraph (a)(4)(C) \10\ that would provide that an RPI may
include an optional offset, which may be specified up to three
decimals. The working price of an RPI to buy (sell) with an offset
would be the lower (higher) of the PBB (PBO) plus (minus) the offset or
the limit price of the RPI. An RPI with an offset would not be eligible
to trade if the working price is below $1.00. If an RPI to buy (sell)
with an offset would have a working price that is more than three
decimals, the working price would be truncated to three decimals.
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\10\ The Exchange proposes to renumber the remaining paragraphs
under Rule 7.44-E(a)(4) accordingly.
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RPIs that include an offset would interact with Retail Orders as
follows. Assume an RLP enters RPI sell interest with an offset of
$0.001 and a limit price of $10.10 while the PBO is $10.11. The RPI
could interact with an incoming buy Retail Order at $10.109. If the PBO
changes to $10.12, the RPI could interact with an incoming buy Retail
Order at $10.119. If, however, the PBO changes again to $10.10, the RPI
could not interact with the Retail Order because the price required to
deliver the minimum $0.001 price improvement ($10.099) would violate
the RLP's limit price of $10.10.
If an RLP otherwise enters an offset greater than the minimum
required price improvement and the offset would produce a price that
would violate the RLP's limit price, the offset would be applied only
to the extent that it respects the RLP's limit price. By way of
illustration, assume RPI buy interest is entered with an offset of
$0.005 and a limit price of $10.112 while the PBB is at $10.11. The RPI
could interact with an incoming sell Retail Order at $10.112, because
it would produce the required price improvement without violating the
RLP's limit price, but it could not interact above the $10.112 limit
price.
The Exchange proposes to make a related change to Rule 7.16-
E(f)(5)(C) to specify that, like Pegged Orders and MPL Orders, RPIs
with an offset would use the National Best Bid (``NBB'') instead of the
PBB as the reference price when a Short Sale Price Test is triggered
pursuant to Rule 201 of Regulation SHO.\11\
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\11\ 17 CFR 242.201.
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* * * * *
The Exchange anticipates implementing this proposed rule change in
the second quarter of 2019, subject to Commission approval, and will
publicly announce the exact implementation date by Trader Update.
2. Statutory Basis
The Exchange believes that the proposal is consistent with Section
6(b) of the Act,\12\ in general, and furthers the objectives of
Sections 6(b)(5) of the Act,\13\ 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 regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, to remove impediments to, and perfect the mechanisms of,
a free and open market and a national market system and, in general, to
protect investors and the public interest and because it is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. As explained below, the proposed rule change would
further align the Program with that offered by the Exchange's
affiliate, NYSE, by adopting optional offset functionality for RPIs and
removing unused functionality that is not offered by the NYSE. The
proposal also expands the scope of the Program to mirror that of BYX
and improve the Program's overall competiveness. Each portion of the
proposal is based on the rules of NYSE and/or BYX, and, therefore, does
not raise any new or novel issues not already considered by the
Commission. First, the proposal to expand the Program to include all
securities traded on the Exchange is identical to the scope of a
similar retail order price improvement program operated by BYX. Second,
the proposal provide RLPs with greater pricing flexibility in the form
of an optional offset for their RPIs is based on the rules of its
affiliate, NYSE, and BYX, both of which permit their equivalent RPI
Orders to include an offset. Lastly, the proposal to eliminate Type 2--
Retail Orders and RPIs designated as MPL Orders is based on the rules
of its affiliate, NYSE, or BYX, neither of which offer similar
functionality as part of their respective retail price improvement
programs.
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\12\ 15 U.S.C. 78f(b).
\13\ 15 U.S.C. 78f(b)(5).
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Expansion of Program's Scope. The Exchange believes expanding the
Program's availability to all securities traded on the Exchange would
remove impediments to, and perfect the mechanisms of, a free and open
market and a national market system and, in general, protect investors
and the public interest by enabling Retail Orders in all securities to
participate in the Program
[[Page 56893]]
and receive potential price improvement. The proposal should benefit
retail investors by providing increased opportunities for price
improvement in any security traded on the Exchange. The proposed scope
of the Program would improve its competitiveness because it would be
identical to BYX, which also operates a retail price improvement
program that is available to all securities traded on BYX.\14\
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\14\ See BYX Rule 11.24(a)(3).
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Type 2--Retail Orders. The Exchange believes that its proposal to
eliminate the Type 2--Retail Order would remove impediments to, and
perfect the mechanisms of, a free and open market and a national market
system by simplifying and streamlining the operation of Retail Orders.
To date, the Exchange has not received a Retail Order designated as
Type 2 for participation in the Program. Therefore, no longer offering
the Type 2--Retail Order should not impact market participants' trading
activity and would serve to remove unused functionality from the
Program and the Exchange's rules. The Proposal would also simplify the
operation of the Program and allow the Exchange to no longer support
functionality that is not utilized. Lastly, the proposal would result
in all Retail Orders being treated as IOC, which is identical to the
treatment of retail orders on the Exchange's affiliate, NYSE, and BYX,
both of which execute Retail Orders upon entry or cancel.\15\
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\15\ See NYSE Rule 107C(k). See also BYX Rule 11.24(f).
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RPI Orders Designated as MPL Orders. The Exchange believes that its
proposal to no longer permit RPI Orders to be designated as MPL Orders
would remove impediments to, and perfect the mechanisms of, a free and
open market and a national market system by simplifying and
streamlining the operation of RPIs. The Exchange notes that to date,
all RPIs have been designated as Limit Orders, not MPL Orders. ETP
Holders that that wish to interact with Retail Orders at the midpoint
are not limited to utilizing RPI Orders designated as MPL Orders and
may enter an MPL Order generally to interact with Retail Orders at the
midpoint of PBBO. Therefore, elimination of this functionality from the
Program would have little to no impact on an ETP Holder's trading
activity. The Exchange also notes that similar functionality is not
offered as part of the retail price improvement programs operated by
BYX and NYSE, neither of which specifically permit their retail price
improvement orders to be designated as midpoint only order types.\16\
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\16\ See BYX Rule 11.24(f). See NYSE Rule 107C(a)(4)(B). See
also Securities Exchange Act Release No. 67347 (July 3, 2012), 77 FR
40673 (July 10, 2012) (Order approving SR-NYSE-2011-55).
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Options Offset Functionality. The Exchange believes that providing
the option for RPI Orders to include an offset would remove impediments
to, and perfect the mechanisms of, a free and open market and a
national market system and, in general, protect investors and the
public interest by enhancing the operation of the Program while
creating additional price improvement opportunities for retail
investors and their order flow. The proposed rule change should
encourage RLPs and non-RLP member organizations to enter RPI Orders by
allowing them to include an offset amount by which it is willing to
improve the PBBO, subject to a the limit price of the order. Absent the
ability, RLPs would only be able to enter RPIs with a single limit
price. The ability to add an offset would provide RLPs with increased
control over their RPIs as well as greater pricing flexibility. The
anticipated increased availability of RPIs would, therefore, facilitate
transactions in securities, remove impediments to, and perfect the
mechanisms of a free and open market and a national market system by
increasing price improvement opportunities on the Exchange for retail
order flow. The proposed rule change is based on and would operate in
an identical manner as the rules of its affiliate, NYSE,\17\ and
BYX,\18\ both of which permit their equivalent RPI Orders to include an
optional offset.
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\17\ See NYSE Rule 107C(a)(4)(B).
\18\ See BYX Rule 11.24(a)(3).
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For these reasons, the Exchange believes that the proposal is
consistent with the Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act,\19\ the Exchange
believes that the proposed rule change will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act because it should promote competition for retail
order flow among exchanges and execution venues. The proposed rule
change to expand the Program to include all securities traded on the
Exchange and to allow RPIs to include an optional offset should
increase competition because it would enable the Exchange to better
compete with similar programs on other exchanges, such as BYX, that are
of similar scope and offer the same functionality.
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\19\ 15 U.S.C. 78f(b)(8).
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The proposal to eliminate Type 2--Retail Orders and RPIs designated
as MPL Orders are not intended to have a competitive impact. These
changes simply remove functionality from the Program that has not been
used at all to date.
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 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.
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-2018-77 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2018-77. 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 website (http://www.sec.gov/rules/sro.shtml).
Copies of the
[[Page 56894]]
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 website 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 offices of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEARCA-2018-77 and should be submitted
on or before December 5, 2018.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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\20\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-24732 Filed 11-13-18; 8:45 am]
BILLING CODE 8011-01-P