[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Notices]
[Pages 44040-44042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18408]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-62540; File No. SR-NYSEAmex-2010-70]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NYSE Amex LLC Extending the
Operative Date of NYSE Amex Equities Rule 92(c)(3) From July 31, 2010
to December 31, 2010
July 21, 2010.
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 July 9, 2010, NYSE Amex LLC (the ``Exchange'' or ``NYSE
Amex'') 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 extend the operative date of NYSE Amex
Equities Rule 92(c)(3) from July 31, 2010 to December 31, 2010. The
text of the proposed rule change is available at the Exchange, the
Commission's Web site at http://www.sec.gov, the Commission's Public
Reference Room, and http://www.nyse.com.
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 is proposing to extend the delayed operative date of
Rule 92(c)(3) from July 31, 2010 to December 31, 2010. The Exchange
believes that this extension will provide the time necessary for the
Exchange, the New York Stock Exchange LLC (``NYSE''), and the Financial
Industry Regulatory Authority, Inc. (``FINRA'') to harmonize their
respective rules concerning customer order protection to achieve a
standardized industry practice.\4\
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\4\ NYSE has filed a companion rule filing to conform its Rules
to the changes proposed in this filing. See SR-NYSE-2010-52,
formally submitted July 9, 2010.
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Background:
On July 5, 2007, the Commission approved amendments to NYSE Rule 92
to permit riskless principal trading at the NYSE.\5\ These amendments
were filed in part to begin the harmonization process between NYSE Rule
92 and FINRA's Manning Rule.\6\ In connection with those amendments,
the NYSE implemented for an operative date of January 16, 2008, NYSE
Rule 92(c)(3), which permits NYSE member organizations to submit
riskless
[[Page 44041]]
principal orders to the NYSE, but requires them to submit to a
designated NYSE database a report of the execution of the facilitated
order. That rule also requires members to submit to that same database
sufficient information to provide an electronic link of the execution
of the facilitated order to all of the underlying orders.
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\5\ See Securities Exchange Act Release No. 56017 (Jul. 5,
2007), 72 FR 38110 (Jul. 12, 2007) (SR-NYSE-2007-21).
\6\ See NASD Rule 2111 and IM-2110-2.
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For purposes of NYSE Rule 92(c)(3), the NYSE informed member
organizations that when executing riskless principal transactions,
firms must submit order execution reports to the NYSE's Front End
Systemic Capture (``FESC'') database linking the execution of the
riskless principal order on the NYSE to the specific underlying orders.
The information provided must be sufficient for both member firms and
the NYSE to reconstruct in a time-sequenced manner all orders,
including allocations to the underlying orders, with respect to which a
member organization is claiming the riskless principal exception.
Because the rule change required both the NYSE and member
organizations to make certain changes to their trading and order
management systems, the NYSE filed to delay to May 14, 2008 the
operative date of the NYSE Rule 92(c)(3) requirements, including
submitting end-of-day allocation reports for riskless principal
transactions and using the riskless principal account type
indicator.\7\ The NYSE filed for additional extensions of the operative
date of Rule 92(c)(3) to December 31, 2009.\8\ Because NYSE Amex
adopted NYSE Rule 92 in its then current form,\9\ the delayed operative
date for the NYSE Rule 92(c)(3) reporting requirements also applied for
NYSE Amex Equities Rule 92(c)(3) reporting requirements and the
Exchange filed for additional extensions of the operative date, the
most recent of which was an extension to July 31, 2010.\10\
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\7\ See Securities Exchange Act Release No. 56968 (Dec. 14,
2007), 72 FR 72432 (Dec. 20, 2007) (SR-NYSE-2007-114).
\8\ See Securities Exchange Act Release Nos. 57682 (Apr. 17,
2008), 73 FR 22193 (Apr. 24, 2008) (SR-NYSE-2008-29); 59621 (Mar.
23, 2009), 74 FR 14179 (Mar. 30, 2009) (SR-NYSE-2009-30); 60396
(July 30, 2009), 74 FR 39126 (Aug. 5, 2009) (SR-NYSE-2009-73); and
61251 (Dec. 29, 2009), 75 FR 482 (Jan. 5, 2010) (SR-NYSE-2009-129).
\9\ The NYSE Amex Equities Rules, which became operative on
December 1, 2008, are substantially identical to the current NYSE
Rules 1-1004 and the Exchange continues to update the NYSE Amex
Equities Rules as necessary to conform with rule changes to
corresponding NYSE Rules filed by the NYSE. See Securities Exchange
Act Release Nos. 58705 (Oct. 1, 2008), 73 FR 58995 (Oct. 8, 2008)
(SR-Amex-2008-63); 58833 (Oct. 22, 2008), 73 FR 64642 (Oct. 30,
2008) (SR-NYSE-2008-106); 58839 (Oct. 23, 2008), 73 FR 64645
(October 30, 2008) (SR-NYSEALTR-2008-03); 59022 (Nov. 26, 2008), 73
FR 73683 (Dec. 3, 2008) (SR-NYSEALTR-2008-10); and 59027 (Nov. 28,
2008), 73 FR 73681 (Dec. 3, 2008) (SR-NYSEALTR-2008-11).
\10\ See Securities Exchange Act Release Nos. 59620 (Mar. 23,
2009), 74 FR 14176 (Mar. 30, 2009) (SR-NYSEALTR-2009-29); 60397
(July 30, 2009), 74 FR 39128 (Aug. 5, 2009) (SR-NYSEAmex-2009-48);
and 61250 (Dec. 29, 2009), 75 FR 477 (Jan. 5, 2010) (SR-NYSEAmex-
2009-92).
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Request for Extension:
FINRA, NYSE, and the Exchange have been working diligently on fully
harmonizing their respective rules, including reviewing the
possibilities for a uniform reporting standard for riskless principal
transactions. However, because of the complexity of the existing
customer order protection rules, including the need for input from
industry participants as well as Commission approval, the Exchange,
NYSE, and FINRA will not have harmonized their respective customer
order protection rules by the current July 31, 2010 date for the
implementation of the FESC riskless principal reporting.
The Exchange notes that it has agreed with NYSE and FINRA to pursue
efforts to harmonize customer order protection rules. On December 10,
2009, FINRA filed with the Commission its rule proposal to adopt a new
industry standard for customer order protection as proposed FINRA Rule
5320.\11\ That proposed filing is based on the draft rule text that
FINRA and NYSE Regulation each circulated to their respective member
participants and includes copies of the comment letters that FINRA and
NYSE Regulation received on the rule proposal. The Exchange intends to
adopt a new customer order protection rule that is substantially
identical to proposed FINRA Rule 5320.
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\11\ See SR-FINRA-2009-090 (December 10, 2009).
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FINRA has filed to extend the time for Commission action on its
rule filing to adopt proposed FINRA Rule 5320 to July 16, 2010. As
proposed by FINRA, however, its proposed new rule will not be effective
upon approval. Rather, the rule filing will become effective at a later
date, not yet known, in order to provide time for FINRA, NYSE, and
market participants to implement programming changes associated with
the proposed new rule.
The Exchange continues to believe that pending full harmonization
of the respective customer order protection rules, it would be
premature to require firms to meet the current Rule 92(c)(3) FESC
reporting requirements.\12\ Indeed, having differing reporting
standards for riskless principal orders would be inconsistent with the
overall goal of the harmonization process.
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\12\ The Exchange notes that it would also need to make
technological changes to implement the proposed FESC reporting
solution for Rule 92(c)(3).
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Accordingly, to provide the Exchange, NYSE, and FINRA the time
necessary to obtain Commission approval for and implement a harmonized
rule set that would apply across their respective marketplaces,
including a harmonized approach to riskless principal trade reporting,
the Exchange is proposing to delay the operative date for NYSE Amex
Equities Rule 92(c)(3) from July 31, 2010 to December 31, 2010.
Pending the harmonization of the three rules, the Exchange will
continue to require that, as of the date each member organization
implements riskless principal routing, the member organizations have in
place systems and controls that allow them to easily match and tie
riskless principal execution on the Exchange to the underlying orders
and that they be able to provide this information to the Exchange upon
request. To make clear that this requirement continues, the Exchange
proposes to amend supplementary material .95 to Rule 92 to specifically
provide that the Rule 92(c)(3) reporting requirements are suspended
until December 31, 2010 and that member organizations are required to
have in place such systems and controls relating to their riskless
principal executions on the Exchange. Moreover, the Exchange will
coordinate with NYSE and FINRA to examine for compliance with the rule
requirements for those firms that engage in riskless principal trading
under Rule 92(c).
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Securities Exchange Act of 1934 (the ``Act''),\13\ in
general, and furthers the objectives of Section 6(b)(5) of the Act,\14\
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. The Exchange
believes the proposed extension provides the Exchange, NYSE, and FINRA
the time necessary to develop a harmonized rule concerning customer
order protection that will enable member organizations to participate
in the national market system without unnecessary impediments.
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(5).
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[[Page 44042]]
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.
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
Because the foregoing 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 for 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, it
has become effective pursuant to Section 19(b)(3)(A) of the Act \15\
and Rule 19b-4(f)(6) thereunder.\16\
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\15\ 15 U.S.C. 78s(b)(3)(A).
\16\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the self-regulatory organization to submit to the
Commission written notice of its intent to file the proposed rule
change, along with a brief description and text of the proposed rule
change, at least five business days prior to the date of filing of
the proposed rule change, or such shorter time as designated by the
Commission. The Exchange has satisfied this requirement.
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The Exchange has requested the Commission to waive the 30-day
operative delay so that the Exchange can extend the operative date of
NYSE Amex Equities Rule 92(c)(3) without interruption. The Exchange
notes that extending the delayed operative date of Rule 92(c)(3) from
July 31, 2010 to December 31, 2010 will provide sufficient time for the
Exchange, NYSE, and FINRA to obtain Commission approval for and
implement a harmonized approach to customer order protection rules,
including how riskless principal transactions should be reported. The
Commission hereby grants the Exchange's request and believes such
waiver is consistent with the protection of investors and the public
interest.\17\ Accordingly, the Commission designates the proposed rule
change operative upon filing with the Commission.
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\17\ For purposes only of waiving the 30-day operative delay of
this proposal, the Commission has considered the proposed rule's
impact on efficiency, competition, and capital formation. See 15
U.S.C. 78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate 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.
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 e-mail to [email protected]. Please include
File Number SR-NYSEAmex-2010-70 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEAmex-2010-70. This
file number should be included on the subject line if e-mail 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 on
official business days between the hours of 10 a.m. and 3 p.m. Copies
of such 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-NYSEAmex-2010-70 and should be submitted on or before
August 17, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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\18\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-18408 Filed 7-26-10; 8:45 am]
BILLING CODE 8010-01-P