Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Deleting the Text of NYSE Arca Equities Rule 5.2(b)(1) and Adopting New NYSE Arca Equities Rule 5190 That Is Substantially the Same as Financial Industry Regulatory Authority Rule 5190, 6613-6615 [2012-2833]
Download as PDF
<![CDATA[
Federal Register / Vol. 77, No. 26 / Wednesday, February 8, 2012 / Notices
• Send an email to rulecomments@sec.gov. Please include File
Number SR–NASDAQ–2012–015 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–NASDAQ–2012–015. 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 (https://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
a.m. and 3 p.m. Copies of such filings
also will be available for inspection and
copying at the principal office of
NASDAQ.
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–NASDAQ–2012–015 and
should be submitted on or before
February 29, 2012.
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.15
Kevin O’Neill,
Deputy Secretary.
tkelley on DSK3SPTVN1PROD with NOTICES
[FR Doc. 2012–2832 Filed 2–7–12; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66311; File No. SR–
NYSEARCA–2012–07]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Deleting the Text of NYSE
Arca Equities Rule 5.2(b)(1) and
Adopting New NYSE Arca Equities
Rule 5190 That Is Substantially the
Same as Financial Industry Regulatory
Authority Rule 5190
February 2, 2012.
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
23, 2012, 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 Exchange. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to delete the
text of NYSE Arca Equities Rule
5.2(b)(1) and adopt new NYSE Arca
Equities Rule 5190 that is substantially
the same as Financial Industry
Regulatory Authority (‘‘FINRA’’) Rule
5190. The text of the proposed rule
change is available at the Exchange, the
Commission’s Public Reference Room,
and 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.
1 15
U.S.C.78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
15 17
CFR 200.30–3(a)(12).
VerDate Mar<15>2010
14:54 Feb 07, 2012
Jkt 226001
PO 00000
Frm 00083
Fmt 4703
Sfmt 4703
6613
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 delete the
text of NYSE Arca Equities Rule
5.2(b)(1) and adopt new NYSE Arca
Equities Rule 5190 that is substantially
the same as FINRA Rule 5190.4 The
proposed rule change will further
harmonize the Exchange’s rules with the
rules of FINRA, NYSE, and NYSE
Amex. The Exchange believes the
proposed rule change will help reduce
duplicative reporting requirements for
ETP holders who are also FINRA
members and/or NYSE or NYSE Amex
member organizations, because ETP
Holders will not be required to submit
an additional Regulation M notification
to the Exchange if they have already
provided a notification to FINRA,
NYSE, or NYSE Amex pursuant to their
respective rules.
Background
NYSE Arca Equities Rule 5.2(b)(1)
requires ETP Holders that act as a lead
underwriter of an offering to notify the
Exchange of such offering in the form
and manner as required by the
Exchange, including the information
specified in the rule. NYSE Arca
Equities Rule 5.2(b)(1) covers the same
material as FINRA Rule 5190, which
was adopted to consolidate certain
Regulation M-related notification
requirements and applies uniformly to
distributions of listed and unlisted
securities.5 FINRA Rule 5190 imposes
certain notice requirements on members
participating in distributions of listed
and unlisted securities, and is designed
to ensure that FINRA receives pertinent
distribution-related information from its
members in a timely fashion to facilitate
its Regulation M compliance program.
FINRA recently amended FINRA Rule
5190 to clarify members’ notice
obligations under the rule.6 NYSE and
NYSE Amex Equities each adopted a
version of FINRA Rule 5190 for their
respective markets, which incorporate
4 See Securities Exchange Act Release No. 58514
(September 11, 2008), 73 FR 54190 (September 18,
2008) (SR–FINRA–2008–039). The Exchange’s
affiliates, New York Stock Exchange LLC (‘‘NYSE’’)
and NYSE Amex LLC (‘‘NYSE Amex’’), previously
adopted versions of FINRA Rule 5190; See
Securities Exchange Act Release Nos. 59965 (May
21, 2009), 74 FR 25783 (May 29, 2009) (SR–NYSE–
2009–25) and 59975 (May 26, 2009), 74 FR 26449
(June 2, 2009) (SR–NYSEALTR–2009–26).
5 See Securities Exchange Act Release No. 58514
(September 11, 2008), 73 FR 54190 (September 18,
2008) (SR–FINRA–2008–039).
6 See Securities Exchange Act Release No. 62970
(September 22, 2010), 75 FR 59771 (September 28,
2010) (SR–FINRA–2010–037).
E:\FR\FM\08FEN1.SGM
08FEN1
6614
Federal Register / Vol. 77, No. 26 / Wednesday, February 8, 2012 / Notices
all of the elements of FINRA Rule 5190
plus add Exchange-specific notification
requirements in NYSE and NYSE Amex
Equities Rules 5190(e).
Pursuant to a regulatory services
agreement, FINRA performs certain
regulatory services on behalf of NYSE
Arca, NYSE, and NYSE Amex,
including review of Regulation Mrelated notification requirements under
NYSE Arca Equities Rule 5.2(b)(1),
NYSE Rule 5190, and NYSE Amex
Equities Rule 5190. Under the current
rule and as provided for pursuant to
NYSE Arca Equities Rule 0, all
notifications to the Exchange under
NYSE Arca Rule 5.2(b)(1) are submitted
directly to FINRA. Accordingly, when a
common member of NYSE Arca and
FINRA or common member of NYSE
Arca and NYSE and NYSE Amex
equities have Regulation M-related
notification requirements, FINRA
receives two submissions from that
same common member—one
notification pursuant to NYSE Arca
Equities Rule 5.2(b)(1) and a separate
Rule 5190 notification that meets the
requirements of FINRA Rule 5190,
NYSE Rule 5190, and NYSE Amex
Equities Rule 5190. The content of these
notifications is substantially the same,
albeit in different formats.
tkelley on DSK3SPTVN1PROD with NOTICES
Proposed Rule Change
The Exchange proposes to harmonize
its Regulation M-related notification
rules with the rules of FINRA, NYSE,
and NYSE Amex Equities both to
provide uniformity in the marketplace
as well as to reduce duplicative
reporting obligations for the same
subject matter. Accordingly, the
Exchange proposes to adopt NYSE Arca
Equities Rule 5190, which is based on
both FINRA Rule 5190, and NYSE and
NYSE Amex Equities Rule 5190.
Similar to NYSE Arca Equities Rule
5.2(b)(1), proposed NYSE Arca Equities
Rule 5190 would require, in part, that
an ETP Holder acting as a manager (or
in a similar capacity) of an offering to
provide the following information:
• The ETP Holder’s determination as
to whether a one-day or five-day
restricted period applies under Rule 101
of SEC Regulation M and the basis for
such determination, including the
contemplated date and time of the
commencement of the restricted period,
the listed security name and symbol,
and identification of the distribution
participants and affiliated purchasers,
no later than the business day prior to
the first complete trading session of the
applicable restricted period, unless later
notification is necessary under specific
circumstances;
VerDate Mar<15>2010
14:54 Feb 07, 2012
Jkt 226001
• The pricing of the distribution,
including the listed security name and
symbol, the type of security, the number
of shares offered, the offering price, the
last sale before the distribution, the
pricing basis, the SEC effective date and
time, the trade date, the restricted
period, and identification of the
distribution participants and affiliated
purchasers, no later than the close of
business the next business day
following the pricing of the distribution,
unless later notification is necessary
under specific circumstances; and
• The cancellation or postponement
of any distribution for which prior
notification of commencement of the
restricted period has been submitted
under paragraph (c)(1)(A), immediately
upon the cancellation or postponement
of such distribution. If no ETP Holder is
acting as a manager (or in a similar
capacity) of such distribution, then each
ETP Holder that is a distribution
participant or affiliated purchaser shall
provide the notice required under
paragraph (c)(1), unless another ETP
Holder has assumed responsibility in
writing for compliance therewith.
Proposed NYSE Arca Equities Rule
5190 is substantially similar to FINRA
Rule 5190, except that the term
‘‘member’’ has been replaced with ‘‘ETP
Holder’’ and ‘‘stabilizing bids’’ have
been added to the proposed rule, which
is consistent with NYSE Rule 5190(e)
and NYSE Amex Equities Rule 5190(e).
The Exchange notes that proposed
NYSE Arca Equities Rule 5190(e)
incorporates the concepts currently set
forth in NYSE Arca Equities Rule
5.2(b)(1)(B).
Consistent with current practice that
notifications ‘‘to the Exchange’’ are
submitted directly to FINRA,
notification under proposed NYSE Arca
Equities Rule 5190 may be satisfied via
third-party data communication
facilitators or emailed directly to
FINRA’s Regulatory Trading Official
Desk at secondaryofferings@finra.org.
Further, because notifications submitted
pursuant to FINRA Rule 5190 or NYSE
Rule 5190 will meet the requirements of
NYSE Arca Equities Rule 5190, such
notifications will also satisfy the
notification requirements of NYSE Arca
Equities Rule 5190.7 ETP Holders,
therefore, need not make duplicative
filings to the Exchange if notifications
have been submitted to FINRA pursuant
to NYSE or FINRA rules.
7 On June 14, 2010, FINRA and the Exchange
entered into a Regulatory Services Agreement that
sets forth, pursuant to the Statement of Work,
certain regulatory services including surveillance
and investigation functions.
PO 00000
Frm 00084
Fmt 4703
Sfmt 4703
2. Statutory Basis
The proposed rule change is
consistent with the Act,8 in general, and
furthers the objectives of Section 6(b)(5)
of the Act,9 in particular, in that 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,
and to remove impediments to and
perfect the mechanism of a free and
open market and a national market
system.
The Exchange believes that the
proposed rule change supports the
objectives of the Act by providing
greater harmonization between NYSE
Arca Equities Rules and FINRA Rules of
similar purpose, resulting in less
burdensome and more efficient
regulatory compliance for dual members
of both SROs. To the extent the
Exchange has proposed changes that
differ from the FINRA version of the
rules, such changes are technical in
nature and do not change the substance
of the proposed NYSE Arca Equities
rules.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
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 10 and Rule
19b–4(f)(6) thereunder.11 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
8 15
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
10 15 U.S.C. 78s(b)(3)(A)(iii).
11 17 CFR 240.19b–4(f)(6).
9 15
E:\FR\FM\08FEN1.SGM
08FEN1
Federal Register / Vol. 77, No. 26 / Wednesday, February 8, 2012 / Notices
proposed rule change has become
effective pursuant to Section 19(b)(3)(A)
of the Act 12 and Rule 19b–4(f)(6)(iii)
thereunder.13
A proposed rule change filed under
Rule 19b–4(f)(6) normally does not
become operative prior to 30 days after
the date of the filing. However, pursuant
to Rule 19b4(f)(6)(iii),14 the Commission
may designate a shorter time if such
action is consistent with the protection
of investors and the public interest. The
Exchange has asked the Commission to
waive the 30-day operative delay so that
the proposal may become operative
immediately upon filing.
The Commission believes that
waiving the 30-day operative delay is
consistent with the protection of
investors and the public interest
because such waiver would reduce
redundancies associated with
Regulation M filings. This reduces
unneeded regulatory burdens on
members and may help ease review of
these filings. For these reasons, the
Commission designates the proposed
rule change as operative immediately
upon filing with the Commission.15
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.
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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@sec.gov. Please include File
Number SR–NYSEARCA–2012–07 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–NYSEARCA–2012–07. 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 (https://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 inspection and copying in
the Commission’s Public Reference
Section, 100 F Street NE., Washington,
DC 20549–1090. 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–2012–07 and should be
submitted on or before February 29,
2012.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.16
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2012–2833 Filed 2–7–12; 8:45 am]
BILLING CODE 8011–01–P
tkelley on DSK3SPTVN1PROD with NOTICES
12 15
U.S.C. 78s(b)(3)(A)(iii).
13 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires the Exchange to give the
Commission written notice of the Exchange’s 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
the proposed rule change, or such shorter time as
designated by the Commission. The Exchange has
satisfied this requirement.
14 17 CFR 240.19b–4(f)(6)(iii).
15 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
VerDate Mar<15>2010
14:54 Feb 07, 2012
Jkt 226001
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66309; File No. SR–MSRB–
2012–01]
Self-Regulatory Organizations;
Municipal Securities Rulemaking
Board; Notice of Filing of Amendments
to Rule G–14, on Reports of Sales or
Purchases, Including the Rule G–14
RTRS Procedures, and Amendments to
the Real-Time Transaction Reporting
System
February 2, 2012.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Exchange Act’’) 1 and Rule 19b–4
thereunder,2 notice is hereby given that
on January 20, 2012, the Municipal
Securities Rulemaking Board (‘‘MSRB’’)
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 MSRB. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The MSRB is filing with the SEC a
proposed rule change consisting of
amendments to Rule G–14, Reports of
Sales or Purchases, including the Rule
G–14 RTRS Procedures, and
amendments to the Real-Time
Transaction Reporting System (‘‘RTRS’’)
information system and subscription
service (the ‘‘RTRS Facility’’;
collectively, ‘‘proposed rule change’’).
The proposed changes to Rule G–14
would remove certain outdated
information. The proposed changes to
the RTRS Facility would (A) remove
certain outdated information and amend
certain definitions to reflect current
system operating hours and business
days; (B) add an RTRS-calculated yield
to the information disseminated for
inter-dealer transactions; (C) remove
certain infrequently used data reporting
requirements; (D) require dealers to
submit dollar prices for certain trades;
and (E) reduce the number of customer
trades suppressed from dissemination
because of potentially erroneous price/
yield calculations. The MSRB proposes
that the proposed rule change be
implemented in three phases, as further
described herein.
The text of the proposed rule change
is available on the MSRB’s Web site at
www.msrb.org/Rules-and1 15
16 17
PO 00000
CFR 200.30–3(a)(12).
Frm 00085
Fmt 4703
Sfmt 4703
6615
2 17
E:\FR\FM\08FEN1.SGM
U.S.C. 78s(b)(1).
CFR 240.19b–4.
08FEN1
]]>Agencies
[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Notices]
[Pages 6613-6615]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2833]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-66311; File No. SR-NYSEARCA-2012-07]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Deleting the Text
of NYSE Arca Equities Rule 5.2(b)(1) and Adopting New NYSE Arca
Equities Rule 5190 That Is Substantially the Same as Financial Industry
Regulatory Authority Rule 5190
February 2, 2012.
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 23, 2012, 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 Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C.78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to delete the text of NYSE Arca Equities Rule
5.2(b)(1) and adopt new NYSE Arca Equities Rule 5190 that is
substantially the same as Financial Industry Regulatory Authority
(``FINRA'') Rule 5190. The text of the proposed rule change is
available at the Exchange, the Commission's Public Reference Room, and
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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to delete the text of NYSE Arca Equities Rule
5.2(b)(1) and adopt new NYSE Arca Equities Rule 5190 that is
substantially the same as FINRA Rule 5190.\4\ The proposed rule change
will further harmonize the Exchange's rules with the rules of FINRA,
NYSE, and NYSE Amex. The Exchange believes the proposed rule change
will help reduce duplicative reporting requirements for ETP holders who
are also FINRA members and/or NYSE or NYSE Amex member organizations,
because ETP Holders will not be required to submit an additional
Regulation M notification to the Exchange if they have already provided
a notification to FINRA, NYSE, or NYSE Amex pursuant to their
respective rules.
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 58514 (September 11,
2008), 73 FR 54190 (September 18, 2008) (SR-FINRA-2008-039). The
Exchange's affiliates, New York Stock Exchange LLC (``NYSE'') and
NYSE Amex LLC (``NYSE Amex''), previously adopted versions of FINRA
Rule 5190; See Securities Exchange Act Release Nos. 59965 (May 21,
2009), 74 FR 25783 (May 29, 2009) (SR-NYSE-2009-25) and 59975 (May
26, 2009), 74 FR 26449 (June 2, 2009) (SR-NYSEALTR-2009-26).
---------------------------------------------------------------------------
Background
NYSE Arca Equities Rule 5.2(b)(1) requires ETP Holders that act as
a lead underwriter of an offering to notify the Exchange of such
offering in the form and manner as required by the Exchange, including
the information specified in the rule. NYSE Arca Equities Rule
5.2(b)(1) covers the same material as FINRA Rule 5190, which was
adopted to consolidate certain Regulation M-related notification
requirements and applies uniformly to distributions of listed and
unlisted securities.\5\ FINRA Rule 5190 imposes certain notice
requirements on members participating in distributions of listed and
unlisted securities, and is designed to ensure that FINRA receives
pertinent distribution-related information from its members in a timely
fashion to facilitate its Regulation M compliance program. FINRA
recently amended FINRA Rule 5190 to clarify members' notice obligations
under the rule.\6\ NYSE and NYSE Amex Equities each adopted a version
of FINRA Rule 5190 for their respective markets, which incorporate
[[Page 6614]]
all of the elements of FINRA Rule 5190 plus add Exchange-specific
notification requirements in NYSE and NYSE Amex Equities Rules 5190(e).
---------------------------------------------------------------------------
\5\ See Securities Exchange Act Release No. 58514 (September 11,
2008), 73 FR 54190 (September 18, 2008) (SR-FINRA-2008-039).
\6\ See Securities Exchange Act Release No. 62970 (September 22,
2010), 75 FR 59771 (September 28, 2010) (SR-FINRA-2010-037).
---------------------------------------------------------------------------
Pursuant to a regulatory services agreement, FINRA performs certain
regulatory services on behalf of NYSE Arca, NYSE, and NYSE Amex,
including review of Regulation M-related notification requirements
under NYSE Arca Equities Rule 5.2(b)(1), NYSE Rule 5190, and NYSE Amex
Equities Rule 5190. Under the current rule and as provided for pursuant
to NYSE Arca Equities Rule 0, all notifications to the Exchange under
NYSE Arca Rule 5.2(b)(1) are submitted directly to FINRA. Accordingly,
when a common member of NYSE Arca and FINRA or common member of NYSE
Arca and NYSE and NYSE Amex equities have Regulation M-related
notification requirements, FINRA receives two submissions from that
same common member--one notification pursuant to NYSE Arca Equities
Rule 5.2(b)(1) and a separate Rule 5190 notification that meets the
requirements of FINRA Rule 5190, NYSE Rule 5190, and NYSE Amex Equities
Rule 5190. The content of these notifications is substantially the
same, albeit in different formats.
Proposed Rule Change
The Exchange proposes to harmonize its Regulation M-related
notification rules with the rules of FINRA, NYSE, and NYSE Amex
Equities both to provide uniformity in the marketplace as well as to
reduce duplicative reporting obligations for the same subject matter.
Accordingly, the Exchange proposes to adopt NYSE Arca Equities Rule
5190, which is based on both FINRA Rule 5190, and NYSE and NYSE Amex
Equities Rule 5190.
Similar to NYSE Arca Equities Rule 5.2(b)(1), proposed NYSE Arca
Equities Rule 5190 would require, in part, that an ETP Holder acting as
a manager (or in a similar capacity) of an offering to provide the
following information:
The ETP Holder's determination as to whether a one-day or
five-day restricted period applies under Rule 101 of SEC Regulation M
and the basis for such determination, including the contemplated date
and time of the commencement of the restricted period, the listed
security name and symbol, and identification of the distribution
participants and affiliated purchasers, no later than the business day
prior to the first complete trading session of the applicable
restricted period, unless later notification is necessary under
specific circumstances;
The pricing of the distribution, including the listed
security name and symbol, the type of security, the number of shares
offered, the offering price, the last sale before the distribution, the
pricing basis, the SEC effective date and time, the trade date, the
restricted period, and identification of the distribution participants
and affiliated purchasers, no later than the close of business the next
business day following the pricing of the distribution, unless later
notification is necessary under specific circumstances; and
The cancellation or postponement of any distribution for
which prior notification of commencement of the restricted period has
been submitted under paragraph (c)(1)(A), immediately upon the
cancellation or postponement of such distribution. If no ETP Holder is
acting as a manager (or in a similar capacity) of such distribution,
then each ETP Holder that is a distribution participant or affiliated
purchaser shall provide the notice required under paragraph (c)(1),
unless another ETP Holder has assumed responsibility in writing for
compliance therewith.
Proposed NYSE Arca Equities Rule 5190 is substantially similar to
FINRA Rule 5190, except that the term ``member'' has been replaced with
``ETP Holder'' and ``stabilizing bids'' have been added to the proposed
rule, which is consistent with NYSE Rule 5190(e) and NYSE Amex Equities
Rule 5190(e). The Exchange notes that proposed NYSE Arca Equities Rule
5190(e) incorporates the concepts currently set forth in NYSE Arca
Equities Rule 5.2(b)(1)(B).
Consistent with current practice that notifications ``to the
Exchange'' are submitted directly to FINRA, notification under proposed
NYSE Arca Equities Rule 5190 may be satisfied via third-party data
communication facilitators or emailed directly to FINRA's Regulatory
Trading Official Desk at secondaryofferings@finra.org. Further, because
notifications submitted pursuant to FINRA Rule 5190 or NYSE Rule 5190
will meet the requirements of NYSE Arca Equities Rule 5190, such
notifications will also satisfy the notification requirements of NYSE
Arca Equities Rule 5190.\7\ ETP Holders, therefore, need not make
duplicative filings to the Exchange if notifications have been
submitted to FINRA pursuant to NYSE or FINRA rules.
---------------------------------------------------------------------------
\7\ On June 14, 2010, FINRA and the Exchange entered into a
Regulatory Services Agreement that sets forth, pursuant to the
Statement of Work, certain regulatory services including
surveillance and investigation functions.
---------------------------------------------------------------------------
2. Statutory Basis
The proposed rule change is consistent with the Act,\8\ in general,
and furthers the objectives of Section 6(b)(5) of the Act,\9\ in
particular, in that 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, and to
remove impediments to and perfect the mechanism of a free and open
market and a national market system.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Exchange believes that the proposed rule change supports the
objectives of the Act by providing greater harmonization between NYSE
Arca Equities Rules and FINRA Rules of similar purpose, resulting in
less burdensome and more efficient regulatory compliance for dual
members of both SROs. To the extent the Exchange has proposed changes
that differ from the FINRA version of the rules, such changes are
technical in nature and do not change the substance of the proposed
NYSE Arca Equities rules.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
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 \10\ and Rule 19b-4(f)(6) thereunder.\11\
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
[[Page 6615]]
proposed rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \12\ and Rule 19b-4(f)(6)(iii) thereunder.\13\
---------------------------------------------------------------------------
\10\ 15 U.S.C. 78s(b)(3)(A)(iii).
\11\ 17 CFR 240.19b-4(f)(6).
\12\ 15 U.S.C. 78s(b)(3)(A)(iii).
\13\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's 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 the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
---------------------------------------------------------------------------
A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative prior to 30 days after the date of the filing.
However, pursuant to Rule 19b4(f)(6)(iii),\14\ the Commission may
designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing.
---------------------------------------------------------------------------
\14\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------
The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because such waiver would reduce redundancies associated with
Regulation M filings. This reduces unneeded regulatory burdens on
members and may help ease review of these filings. For these reasons,
the Commission designates the proposed rule change as operative
immediately upon filing with the Commission.\15\
---------------------------------------------------------------------------
\15\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------
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.
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 (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NYSEARCA-2012-07 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-NYSEARCA-2012-07. 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 (https://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 inspection and
copying in the Commission's Public Reference Section, 100 F Street NE.,
Washington, DC 20549-1090. 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-2012-07 and should be submitted on or before
February 29, 2012.
---------------------------------------------------------------------------
\16\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-2833 Filed 2-7-12; 8:45 am]
BILLING CODE 8011-01-P
