Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Changes Amending NYSE Rule 104 and NYSE MKT Rule 104-Equities, as Modified by Amendment Nos. 1, To Codify Certain Traditional Trading Floor Functions That May Be Performed by Designated Market Makers, To Make Exchange Systems Available to DMMs That Would Provide DMMs With Certain Market Information, To Amend the Exchanges' Rules Governing the Ability of DMMs To Provide Market Information to Floor Brokers, and To Make Conforming Amendments to Other Rules, 46661-46664 [2013-18472]

Download as PDF Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices SECURITIES AND EXCHANGE COMMISSION [Release No. 34–70047; File Nos. SR–NYSE– 2013–21; SR–NYSEMKT–2013–25] Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Changes Amending NYSE Rule 104 and NYSE MKT Rule 104—Equities, as Modified by Amendment Nos. 1, To Codify Certain Traditional Trading Floor Functions That May Be Performed by Designated Market Makers, To Make Exchange Systems Available to DMMs That Would Provide DMMs With Certain Market Information, To Amend the Exchanges’ Rules Governing the Ability of DMMs To Provide Market Information to Floor Brokers, and To Make Conforming Amendments to Other Rules July 26, 2013. I. Introduction On April 9, 2013, the New York Stock Exchange LLC (‘‘NYSE’’) and NYSE MKT LLC (‘‘NYSE MKT’’) (collectively, the ‘‘Exchanges’’) each filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 proposed rule changes (‘‘Proposals’’) to amend certain of their respective rules relating to Designated Market Makers (‘‘DMMs’’) 3 and Floor brokers. The Proposals were published for comment in the Federal Register on April 29, 2013.4 The Commission 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See NYSE Rule 98(b)(2). ‘‘DMM unit’’ means any member organization, aggregation unit within a member organization, or division or department within an integrated proprietary aggregation unit of a member organization that (i) has been approved by NYSE Regulation pursuant to section (c) of NYSE Rule 98, (ii) is eligible for allocations under NYSE Rule 103B as a DMM unit in a security listed on the Exchange, and (iii) has met all registration and qualification requirements for DMM units assigned to such unit. The term ‘‘DMM’’ means any individual qualified to act as a DMM on the floor of the Exchange under NYSE Rule 103. See also NYSE MKT Equities Rule 2(i). Rule 2(i) defines the term ‘‘DMM’’ to mean an individual member, officer, partner, employee or associated person of a DMM unit who is approved by the Exchange to act in the capacity of a DMM. NYSE MKT Equities Rule 2(j) defines the term ‘‘DMM unit’’ as a member organization or unit within a member organization that has been approved to act as a DMM unit under NYSE MKT Equities Rule 98. 4 See Securities Exchange Act Release No. 69427 (April 23, 2013), 78 FR 25118 (SR–NYSE–2013–21) (‘‘NYSE Notice’’); Release No. 69428 (April 23, 2013), 78 FR 25102 (SR–NYSEMKT–2013–25). On April 18, 2013, the Exchanges filed Partial mstockstill on DSK4VPTVN1PROD with NOTICES 2 17 VerDate Mar<15>2010 17:02 Jul 31, 2013 Jkt 229001 received two comment letters on the NYSE proposal.5 On June 11, 2013, the Commission extended the time period in which to either approve, disapprove, or to institute proceedings to determine whether to disapprove the Proposals, to July 26, 2013.6 This order institutes proceedings under Section 19(b)(2)(B) of the Act to determine whether to approve or disapprove the Proposals. II. Background The Proposals seek to amend the Exchanges’ rules in several ways. First, the Exchanges propose to codify certain trading floor functions that may be performed by DMMs. Second, the Exchanges propose to allow DMMs to access Exchange systems that would provide DMMs with additional order information about the securities in which they are registered. Third, the Exchanges propose to make certain conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about Floor broker agency interest files (‘‘e-Quotes’’) is available to the DMM. Finally, the Exchanges propose to modify the terms under which DMMs would be permitted to provide market information to Floor brokers and others.7 Amendment No. 1 to the Proposals. The purpose of this amendment was to file the Exhibit 3 which was not included in the April 9, 2013 filings. 5 See Letter to Elizabeth M. Murphy, Secretary, Commission, from Daniel Buenza, Lecturer in Management, London School of Economics and Yuval Millo, Professor of Social Studies of Finance, University of Leicester, dated May 20, 2013 (‘‘LSE Letter’’); Letter to Commission, from James J. Angel, Ph.D., CFA, Associate Professor of Finance, Georgetown University, McDonough School of Business, dated May 14, 2013 (‘‘Angel Letter’’). Although the comment letters were only explicitly directed to the NYSE proposal, the NYSE and NYSE MKT proposals are essentially identical for relevant purposes. As such, this order references both Proposals when discussing the comment letters. 6 See Securities Exchange Act Release No. 69736, 78 FR 36284 (June 17, 2013) (SR–NYSE–2013–21); Release No. 69733, 78 FR 36284 (SR–NYSEMKT– 2012–25) (June 17, 2013). 7 On October 31, 2011, NYSE and NYSE Amex LLC (the predecessor entity of NYSE MKT) (‘‘NYSE Amex’’) each filed with the Commission proposed rule changes to amend Rule 104 (the ‘‘2011 Proposals’’) that proposed largely identical changes to the relevant rules as the instant Proposals. The 2011 Proposals were published for comment in the Federal Register on November 17, 2011. See Securities Exchange Act Release Nos. 65735 (November 10, 2011), 76 FR 71405 (SR– NYSEAmex–2011–86) (‘‘NYSE Amex Notice’’) and 65736 (November 10, 2011), 76 FR 71399 (SR– NYSE–2011–56) (‘‘NYSE Notice’’). The Commission received no comment letters on the Proposals. On December 22, 2011, the Commission extended the time period to February 15, 2012, in which to approve the 2011 Proposals, disapprove the 2011 Proposals, or institute proceedings to determine whether to approve or disapprove the 2011 Proposals. See Securities Exchange Act Release No. 66036, 76 FR 82011 (December 29, 2011). The PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 46661 A. Trading Floor Functions The Exchanges propose to codify certain traditional Trading Floor functions that were formerly performed by specialists that are now performed by DMMs, and which were described in each SRO’s respective Floor Official Manual.8 The proposed rules would specify four categories of trading floor functions that DMMs could perform: (1) Maintaining order among Floor brokers manually trading at the DMM’s assigned panel, including managing trading crowd activity and facilitating Floor broker executions at the post; 9 (2) facilitating Floor broker interactions, including either participating as a buyer or seller, and appropriately communicating to Floor brokers the availability of other Floor broker contraside interest; 10 (3) assisting Floor Commission received no comment letters on the 2011 Proposals during the extension. On February 15, 2012, the Commission issued an order instituting proceedings to determine whether to approve or disapprove the 2011 Proposals. See Securities Exchange Act Release No. 66397, 77 FR 10586 (February 22, 2012). The Commission received six comment letters supporting the 2011 Proposals after instituting proceedings. After the Commission issued a notice of designation of longer period for Commission action on May 14, 2012, see Securities Exchange Act Release No. 66981, 77 FR 29730 (May 18, 2012), the Commission disapproved the 2011 Proposals on July 13, 2012. See Securities Exchange Act Release No. 67437, 77 FR 42525 (July 13, 2012) (‘‘Disapproval Order’’). 8 See, e.g., NYSE 2004 Floor Official Manual, Market Surveillance June 2004 Edition, Chapter Two, Section I. at 7 (‘‘specialist helps ensure that such markets are fair, orderly, operationally efficient and competitive with all other markets in those securities’’), Section I.B.3. at 10–11 (‘‘[i]n opening and reopening trading in a listed security, a specialist should . . . [s]erve as the market coordinator for the securities in which the specialist is registered by exercising leadership and managing trading crowd activity and promptly identifying unusual market conditions that may affect orderly trading in those securities, seeking the advice and assistance of Floor Officials when appropriate’’ and ‘‘[a]ct as a catalyst in the markets for the securities in which the specialist is registered, making all reasonable efforts to bring buyers and sellers together to facilitate the public pricing of orders, without acting as principal unless reasonably necessary’’), Section I.B.4. at 11 (‘‘In view of the specialist’s central position in the Exchange’s continuous two-way agency auction market, a specialist should proceed as follows . . . [e]qually and impartially provide accurate and timely market information to all inquiring members in a professional and courteous manner.’’), and Section I.B.5. at 12 (A specialist should ‘‘[p]romptly provide information when necessary to research the status of an order or a questioned trade and cooperate with other members in resolving and adjusting errors.’’). Relevant excerpts of the 2004 Floor Official Manual are attached as Exhibit 3 of this filing. 9 See id. at Section I.A. at 7 (‘‘specialist helps ensure that such markets are fair, orderly, operationally efficient and competitive with all other markets in those securities’’). 10 See id. at Section I.B.3. at 10–11 (‘‘[i]n opening and reopening trading in a listed security, a specialist should . . . [s]erve as the market E:\FR\FM\01AUN1.SGM Continued 01AUN1 46662 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices brokers with respect to their orders by providing information regarding the status of a Floor broker’s orders, helping to resolve errors or questioned trades, adjusting errors, and cancelling or inputting Floor broker agency interest on behalf of a Floor broker; 11 and (4) researching the status of orders or questioned trades.12 mstockstill on DSK4VPTVN1PROD with NOTICES B. DMM Access to Additional Order Information Each SRO proposes to make Exchange systems available to a DMM at the post that display the following types of information about securities in which the DMM is registered: (A) Aggregated information about buying and selling interest; 13 (B) disaggregated information about the price and size of any individual order or e-Quote and the entering and clearing firm information for such orders, except that Exchange systems would not make available to DMMs information about any order or eQuote, or portion thereof, that a market participant has elected not to display to a DMM; and (C) post-trade information.14 The Proposals would make available to DMMs disaggregated information about the following interest in securities in which the DMM is coordinator for the securities in which the specialist is registered by exercising leadership and managing trading crowd activity and promptly identifying unusual market conditions that may affect orderly trading in those securities, seeking the advice and assistance of Floor Officials when appropriate’’ and ‘‘[a]ct as a catalyst in the markets for the securities in which the specialist is registered, making all reasonable efforts to bring buyers and sellers together to facilitate the public pricing of orders, without acting as principal unless reasonably necessary’’). 11 See id. at Section I.B.4. at 11 (‘‘In view of the specialist’s central position in the Exchange’s continuous two-way agency auction market, a specialist should proceed as follows . . . [e]qually and impartially provide accurate and timely market information to all inquiring members in a professional and courteous manner.’’). 12 See id. at Section I.B.5. at 12 (A specialist should ‘‘[p]romptly provide information when necessary to research the status of an order or a questioned trade and cooperate with other members in resolving and adjusting errors.’’). 13 Exchange systems currently make available to DMMs aggregate information about the following interest in securities in which the DMM is registered: (a) All displayable interest submitted by off-floor participants; (b) all Minimum Display Reserve orders, including the reserve portion; (c) all displayable floor broker agency interest files (‘‘eQuotes’’); (d) all Minimum Display Reserve eQuotes, including the reserve portion; and (e) the reserve quantity of Non-Display Reserve e-Quotes, unless the floor broker elects to exclude that reserve quantity from availability to the DMM. 14 For the latter two categories, the DMM also would have access to entering and clearing firm information for each order and, as applicable, the badge number of the floor broker representing the order. According to the Exchanges, the systems would not contain any information about the ultimate customer (i.e., the name of the member or member organization’s customer) in a transaction. VerDate Mar<15>2010 17:02 Jul 31, 2013 Jkt 229001 registered: (a) The price and size of all displayable interest submitted by offFloor participants (off-Floor participants may submit non-displayable interest that is hidden from the DMM); 15 and (b) all e-Quotes, including reserve e-Quotes, that the Floor broker has not elected to exclude from availability to the DMM.16 C. Conforming Amendments and Floor Broker e-Quote Information The Exchanges also propose to make conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about eQuotes is available to the DMM. Specifically, the Exchanges propose to revise NYSE Rule 70 and NYSE MKT Rule 70 governing e-Quotes to reflect that disaggregated order information would be available to the DMM except as elected otherwise. The Exchanges would allow a Floor broker to enter eQuotes with reserve interest (‘‘Reserve e-Quote’’) with or without a displayable portion. A Reserve e-Quote with a displayable portion would participate in manual and automatic executions. Order information at each price point, including the reserve portion, would be included in the aggregate interest available to the DMM. Order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve eQuote with a displayable portion from the DMM, then the DMM would have access to the entire portion on an aggregated basis but would not have access to any of that interest on a disaggregated basis. A Reserve e-Quote with an undisplayable portion would also participate in manual and automatic executions. Like the Reserve e-Quote with a displayable portion, order information at each price point would be included in the aggregate interest available to the DMM. Again, like the Reserve e-Quote with a displayable portion, order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with an undisplayable portion from the DMM, however, then the DMM would not have access to such 15 See NYSE and NYSE MKT Rule 13, defining non-displayed order types. 16 The Exchanges previously permitted DMMs to have access to Exchange systems that contained the disaggregated order information described above. The Exchanges stopped making such information available to DMMs on January 19, 2011. See NYSE and NYSE Amex Information Memo 11–03. PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 interest on either an aggregated basis or a disaggregated basis. Such interest would not participate in manual executions. In addition, the Exchanges propose to delete rules which currently prohibit DMMs from using the Display Book system to access information about eQuotes excluded from the aggregated agency interest and Minimum Display Reserve Order information, other than for the purpose of effecting transactions that are reasonably imminent where such Floor broker agency and Minimum Display Reserve Order interest information is necessary to effect such transaction.17 The Exchanges note that both Floor brokers and off-Floor participants would have the continued ability to enter partially or completely ‘‘dark’’ orders that are not visible to the DMM, which would prevent any communication about such interest between the DMM and Floor brokers. D. Ability of DMMs To Provide Market Information on the Trading Floor The Exchanges also propose to modify the manner under which DMMs would be permitted to provide market information to Floor brokers and visitors on the trading floor, provided that the market participant entering the order had not opted out of such availability. Specifically, the proposed rules would permit a DMM to provide the market information to which he or she has access to a: (1) Floor broker in response to an inquiry in the normal course of business; or (2) visitor to the trading floor for the purpose of demonstrating methods of trading. As such, Floor brokers would be able to access disaggregated order information that market participants have not otherwise elected to be hidden from the DMM. A Floor broker would not be able to submit such an inquiry for market information by electronic means, and the DMM’s response containing market information could not be delivered through electronic means. Because the proposed rule expands on and incorporates the current SRO rules regarding disclosure of order information by DMMs, the Exchanges are proposing to delete these rules.18 The current rules provide that a DMM may disclose market information for three purposes. First, a DMM may disclose market information for the purpose of demonstrating the methods of trading to visitors to the trading floor. 17 See proposed deletions to NYSE Rule 104(a)(6) and NYSE MKT Rule 104(a)(b). 18 The Exchanges are also proposing conforming amendments to correct cross-references to the former rule. E:\FR\FM\01AUN1.SGM 01AUN1 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices This aspect of the current rule is replicated in the proposed rules. Second, a DMM may disclose market information to other market centers in order to facilitate the operation of the Intermarket Trading System (‘‘ITS’’). According to the Exchanges, this text is obsolete as the ITS Plan has been eliminated and therefore the Exchanges are proposing to delete it. Third, a DMM may, while acting in a market making capacity, provide information about buying or selling interest in the market, including (a) aggregated buying or selling interest contained in Floor broker agency interest files other than interest the broker has chosen to exclude from the aggregated buying and selling interest, (b) aggregated interest of Minimum Display Reserve Orders and (c) the interest included in DMM interest files, excluding Capital Commitment Schedule (‘‘CCS’’) interest as described in Rule 1000(c), in response to an inquiry from a member conducting a market probe in the normal course of business. The proposed rules would permit DMMs to provide Floor brokers not only with the same aggregated order information that DMMs currently are permitted to provide under current rules, but also with the disaggregated and post-trade order information described above.19 The proposed rules would permit a DMM to provide market information to a Floor broker in response to a specific request by the Floor broker to the DMM at the post, rather than specifying that the information must be provided ‘‘in response to an inquiry from a member conducting a market probe in the normal course of business,’’ as currently provided in the SRO rules. Under the Proposals, Floor brokers would not have access to Exchange systems that provide disaggregated order information, and Floor brokers would only be able to access such market information through a direct manual interaction with a DMM at the post. mstockstill on DSK4VPTVN1PROD with NOTICES III. Comment Letters The Commission received two comment letters in response to the Proposals.20 The first commenter offered several arguments in support of the Proposals. First, the commenter stated that, by permitting DMMs to use both pre- and post-trade information that is already present on the Exchanges’ systems, the Proposals promote the legitimate Floor function of matching buyers and sellers.21 This could promote just and equitable principles of trade, and would be in the public interest.22 According to this commenter, the Proposals would enable market participants to trade larger blocks of stock with minimal market impact and could improve execution quality, especially for large buy-side institutions such as mutual funds that trade on behalf of retail investors.23 The commenter also stated that the Proposals contained sufficient safeguards to protect investors.24 Specifically, the commenter stated that institutional investors monitor execution quality very closely, and that if the Proposals were to hurt execution quality on the Exchanges, market participants would migrate to other exchanges.25 The commenter also stated that the Proposals do not permit unfair discrimination, as any market participant that wanted to avail itself to such disaggregated order information could route its orders to Floor brokers.26 The second commenter expressed qualified support for the proposal.27 Citing its research, this commenter stated that communicating partially disaggregated order information from DMMs to Floor brokers would have a positive effect on price discovery, as it would assist DMMs and Floor brokers in finding the counterparties for certain trades.28 In this way, the commenter believed that the Proposals could incentivize transactions and contribute to greater liquidity in the market.29 However, the commenter also noted the importance of maintaining controls on the dissemination of such information, as the dissemination of excessive information may be detrimental to the investor that originated the order.30 In that regard, the commenter noted that NYSE maintained a system of formal rules and sanctions, in addition to the informal discipline that exists on the Floor, that safeguard the disclosure of order information.31 In contrast, however, the commenter noted that such controls did not exist outside of the Floor.32 As such, the commenter stated that disaggregated order information should not be made available to market participants outside 19 Because DMMs on the trading floor do not have access to CCS interest information, the proposed rule does not specify that DMMs would not be disseminating such information. 20 See supra note 5. VerDate Mar<15>2010 17:02 Jul 31, 2013 Jkt 229001 PO 00000 21 Id. at 2, 4. Angel letter at 7–8. 23 Id. at 2. 24 Id. at 7. 25 Id. at 5. 26 Id. at 6–7. 27 See LSE letter, supra note 5. 28 Id. at 2–3. 29 Id. at 1–2. 30 Id. at 2. 31 Id. 32 Id. 22 See Frm 00099 Fmt 4703 Sfmt 4703 46663 the floor of the NYSE, as there would ‘‘be no means to control the use that this information is put to.’’ 33 IV. Proceedings To Determine Whether To Approve or Disapprove SR–NYSE– 2013–21 and NYSEMKT–2013–25 and Grounds for Disapproval Under Consideration The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the Proposals should be approved or disapproved. Institution of such proceedings is appropriate at this time in view of the legal and policy issues raised by the Proposals that are discussed below. Institution of these proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described in greater detail below, the Commission seeks and encourages interested persons to provide additional comment to inform the Commission’s analysis of whether to approve or disapprove the Proposals. Pursuant to Section 19(b)(2)(B), the Commission is providing notice of the grounds for disapproval under consideration. In particular, Section 6(b)(5) of the Act 34 requires that the rules of an exchange be designed, among other things, 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; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. Section 6(b)(8) of the Act 35 requires that the rules of an exchange do not impose any burden on competition not necessary or appropriate in furtherance of the Act. In the Proposals, the Exchanges, among other things, take the position that ‘‘[b]roadening the scope of information that DMMs can provide Floor brokers will assist DMMs with carrying out their historical function of bringing Floor brokers together to facilitate block and other large transactions. . . .’’ 36 The Exchanges also provide scenarios where a Floor broker that receives disaggregated information about the price and size of individual orders on the Exchange books, along with the identity of the 33 Id. 34 15 U.S.C. 78f(b)(5). U.S.C. 78f(b)(8). 36 See NYSE Notice, supra note 4, 78 FR at 25121. 35 15 E:\FR\FM\01AUN1.SGM 01AUN1 mstockstill on DSK4VPTVN1PROD with NOTICES 46664 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices broker-dealer that entered the order, might conceivably be better able to facilitate a large transaction for its customer.37 With respect to the ability of Floor brokers to pass this disaggregated information on to their customers, however, the Exchanges simply state that ‘‘the Floor broker’s customer potentially could initiate direct contact with the member organization’’ that entered the order, and thus the retransmittal of this information ‘‘provides a sort of check of the principal on the agent and ensures that the agent adds value.’’ 38 But the Exchanges go on to say that the wider off-floor dissemination of disaggregated information ‘‘presents obvious dangers,’’ given that Exchange rules restricting the proprietary trading of DMMs and requiring the maintenance of informational barriers do not apply to other market participants, so that ‘‘there would be no mechanism . . . ensuring that the disaggregated information could only be used for the benefit of investors.’’ 39 This concern was echoed by one of the commenters that, as noted above, did not believe that disaggregated information should be available to market participants outside the floors of the Exchanges.40 The Exchanges, however, do not address why the dangers that would arise if disaggregated information were made available generally to off-floor market participants are not present when this same information is made available to off-floor market participants that are Floor broker customers. Nor have the Exchanges described any mechanism by which they would be able to assure that disaggregated information is not misused by Floor broker customers. Accordingly, the Commission is concerned that the Exchanges have not demonstrated why this aspect of the Proposals is designed to protect investors and public interest, and is not designed to permit unfair discrimination, or impose an unnecessary or inappropriate burden on competition. The Commission therefore believes that questions are raised as to whether the Proposals are consistent with (1) the requirements of Section 6(b)(5) of the Act, including whether they would not be designed to permit unfair discrimination, or would promote just and equitable principles of trade, or 37 A similar scenario is provided with respect to the provision of disaggregated post-trade information. Id. at 25124. 38 Id. at 25127. 39 Id. at 25127. 40 See LSE Letter, supra note 5, at 2. VerDate Mar<15>2010 17:02 Jul 31, 2013 Jkt 229001 protect investors and the public interest; and (2) the requirements of Section 6(b)(8) of the Act, including whether they would impose an unnecessary or inappropriate burden on competition. V. Solicitation of Comments The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any others they may have with the Proposals. In particular, the Commission invites the written views of interested persons concerning whether the Proposals are inconsistent with Section 6(b)(5), Section 6(b)(8) or any other provision of the Act, or the rules and regulation thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.41 Interested persons are invited to submit written data, views and arguments regarding whether the Proposals should be disapproved by August 22, 2013. Any person who wishes to file a rebuttal to any other person’s submission must file that rebuttal by September 5, 2013. 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 rulecomments@sec.gov. Please include File Number SR–NYSE–2013–21 and SR– NYSEMKT–2013–25 on the subject line. 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 Proposals that are filed with the Commission, and all written communications relating to the Proposals 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 such filings also will be available for inspection and copying at the principal office of the Exchanges. 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–NYSE– 2013–21 and SR–NYSEMKT–2013–25 and should be submitted on or before August 22, 2013. Rebuttal comments should be submitted by September 5, 2013. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.42 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2013–18472 Filed 7–31–13; 8:45 am] BILLING CODE P 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–NYSE–2013–21 and SR– NYSEMKT–2013–25. These file numbers should be included on the subject line if email is used. To help the Commission process and review your 41 Section 19(b)(2) of the Act, as amended by the Securities Act Amendments of 1975, Pub. L. 94–29 (June 4, 1975), grants the Commission flexibility to determine what type of proceeding—either oral or notice and opportunity for written comments—is appropriate for consideration of a particular Proposals by a self-regulatory organization. See Securities Act Amendments of 1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). PO 00000 Frm 00100 Fmt 4703 Sfmt 9990 42 17 E:\FR\FM\01AUN1.SGM CFR 200.30–3(a)(57). 01AUN1

Agencies

[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Notices]
[Pages 46661-46664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18472]



[[Page 46661]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70047; File Nos. SR-NYSE-2013-21; SR-NYSEMKT-2013-25]


Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE 
MKT LLC; Order Instituting Proceedings To Determine Whether To Approve 
or Disapprove Proposed Rule Changes Amending NYSE Rule 104 and NYSE MKT 
Rule 104--Equities, as Modified by Amendment Nos. 1, To Codify Certain 
Traditional Trading Floor Functions That May Be Performed by Designated 
Market Makers, To Make Exchange Systems Available to DMMs That Would 
Provide DMMs With Certain Market Information, To Amend the Exchanges' 
Rules Governing the Ability of DMMs To Provide Market Information to 
Floor Brokers, and To Make Conforming Amendments to Other Rules

July 26, 2013.

I. Introduction

    On April 9, 2013, the New York Stock Exchange LLC (``NYSE'') and 
NYSE MKT LLC (``NYSE MKT'') (collectively, the ``Exchanges'') each 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ proposed rule changes 
(``Proposals'') to amend certain of their respective rules relating to 
Designated Market Makers (``DMMs'') \3\ and Floor brokers.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See NYSE Rule 98(b)(2). ``DMM unit'' means any member 
organization, aggregation unit within a member organization, or 
division or department within an integrated proprietary aggregation 
unit of a member organization that (i) has been approved by NYSE 
Regulation pursuant to section (c) of NYSE Rule 98, (ii) is eligible 
for allocations under NYSE Rule 103B as a DMM unit in a security 
listed on the Exchange, and (iii) has met all registration and 
qualification requirements for DMM units assigned to such unit. The 
term ``DMM'' means any individual qualified to act as a DMM on the 
floor of the Exchange under NYSE Rule 103. See also NYSE MKT 
Equities Rule 2(i). Rule 2(i) defines the term ``DMM'' to mean an 
individual member, officer, partner, employee or associated person 
of a DMM unit who is approved by the Exchange to act in the capacity 
of a DMM. NYSE MKT Equities Rule 2(j) defines the term ``DMM unit'' 
as a member organization or unit within a member organization that 
has been approved to act as a DMM unit under NYSE MKT Equities Rule 
98.
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    The Proposals were published for comment in the Federal Register on 
April 29, 2013.\4\ The Commission received two comment letters on the 
NYSE proposal.\5\ On June 11, 2013, the Commission extended the time 
period in which to either approve, disapprove, or to institute 
proceedings to determine whether to disapprove the Proposals, to July 
26, 2013.\6\ This order institutes proceedings under Section 
19(b)(2)(B) of the Act to determine whether to approve or disapprove 
the Proposals.
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    \4\ See Securities Exchange Act Release No. 69427 (April 23, 
2013), 78 FR 25118 (SR-NYSE-2013-21) (``NYSE Notice''); Release No. 
69428 (April 23, 2013), 78 FR 25102 (SR-NYSEMKT-2013-25). On April 
18, 2013, the Exchanges filed Partial Amendment No. 1 to the 
Proposals. The purpose of this amendment was to file the Exhibit 3 
which was not included in the April 9, 2013 filings.
    \5\ See Letter to Elizabeth M. Murphy, Secretary, Commission, 
from Daniel Buenza, Lecturer in Management, London School of 
Economics and Yuval Millo, Professor of Social Studies of Finance, 
University of Leicester, dated May 20, 2013 (``LSE Letter''); Letter 
to Commission, from James J. Angel, Ph.D., CFA, Associate Professor 
of Finance, Georgetown University, McDonough School of Business, 
dated May 14, 2013 (``Angel Letter''). Although the comment letters 
were only explicitly directed to the NYSE proposal, the NYSE and 
NYSE MKT proposals are essentially identical for relevant purposes. 
As such, this order references both Proposals when discussing the 
comment letters.
    \6\ See Securities Exchange Act Release No. 69736, 78 FR 36284 
(June 17, 2013) (SR-NYSE-2013-21); Release No. 69733, 78 FR 36284 
(SR-NYSEMKT-2012-25) (June 17, 2013).
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II. Background

    The Proposals seek to amend the Exchanges' rules in several ways. 
First, the Exchanges propose to codify certain trading floor functions 
that may be performed by DMMs. Second, the Exchanges propose to allow 
DMMs to access Exchange systems that would provide DMMs with additional 
order information about the securities in which they are registered. 
Third, the Exchanges propose to make certain conforming amendments to 
their rules to reflect the additional order information that would be 
available to DMMs through Exchange systems, and to specify what 
information about Floor broker agency interest files (``e-Quotes'') is 
available to the DMM. Finally, the Exchanges propose to modify the 
terms under which DMMs would be permitted to provide market information 
to Floor brokers and others.\7\
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    \7\ On October 31, 2011, NYSE and NYSE Amex LLC (the predecessor 
entity of NYSE MKT) (``NYSE Amex'') each filed with the Commission 
proposed rule changes to amend Rule 104 (the ``2011 Proposals'') 
that proposed largely identical changes to the relevant rules as the 
instant Proposals. The 2011 Proposals were published for comment in 
the Federal Register on November 17, 2011. See Securities Exchange 
Act Release Nos. 65735 (November 10, 2011), 76 FR 71405 (SR-
NYSEAmex-2011-86) (``NYSE Amex Notice'') and 65736 (November 10, 
2011), 76 FR 71399 (SR-NYSE-2011-56) (``NYSE Notice''). The 
Commission received no comment letters on the Proposals. On December 
22, 2011, the Commission extended the time period to February 15, 
2012, in which to approve the 2011 Proposals, disapprove the 2011 
Proposals, or institute proceedings to determine whether to approve 
or disapprove the 2011 Proposals. See Securities Exchange Act 
Release No. 66036, 76 FR 82011 (December 29, 2011). The Commission 
received no comment letters on the 2011 Proposals during the 
extension. On February 15, 2012, the Commission issued an order 
instituting proceedings to determine whether to approve or 
disapprove the 2011 Proposals. See Securities Exchange Act Release 
No. 66397, 77 FR 10586 (February 22, 2012). The Commission received 
six comment letters supporting the 2011 Proposals after instituting 
proceedings. After the Commission issued a notice of designation of 
longer period for Commission action on May 14, 2012, see Securities 
Exchange Act Release No. 66981, 77 FR 29730 (May 18, 2012), the 
Commission disapproved the 2011 Proposals on July 13, 2012. See 
Securities Exchange Act Release No. 67437, 77 FR 42525 (July 13, 
2012) (``Disapproval Order'').
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A. Trading Floor Functions

    The Exchanges propose to codify certain traditional Trading Floor 
functions that were formerly performed by specialists that are now 
performed by DMMs, and which were described in each SRO's respective 
Floor Official Manual.\8\ The proposed rules would specify four 
categories of trading floor functions that DMMs could perform: (1) 
Maintaining order among Floor brokers manually trading at the DMM's 
assigned panel, including managing trading crowd activity and 
facilitating Floor broker executions at the post; \9\ (2) facilitating 
Floor broker interactions, including either participating as a buyer or 
seller, and appropriately communicating to Floor brokers the 
availability of other Floor broker contra-side interest; \10\ (3) 
assisting Floor

[[Page 46662]]

brokers with respect to their orders by providing information regarding 
the status of a Floor broker's orders, helping to resolve errors or 
questioned trades, adjusting errors, and cancelling or inputting Floor 
broker agency interest on behalf of a Floor broker; \11\ and (4) 
researching the status of orders or questioned trades.\12\
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    \8\ See, e.g., NYSE 2004 Floor Official Manual, Market 
Surveillance June 2004 Edition, Chapter Two, Section I. at 7 
(``specialist helps ensure that such markets are fair, orderly, 
operationally efficient and competitive with all other markets in 
those securities''), Section I.B.3. at 10-11 (``[i]n opening and 
reopening trading in a listed security, a specialist should . . . 
[s]erve as the market coordinator for the securities in which the 
specialist is registered by exercising leadership and managing 
trading crowd activity and promptly identifying unusual market 
conditions that may affect orderly trading in those securities, 
seeking the advice and assistance of Floor Officials when 
appropriate'' and ``[a]ct as a catalyst in the markets for the 
securities in which the specialist is registered, making all 
reasonable efforts to bring buyers and sellers together to 
facilitate the public pricing of orders, without acting as principal 
unless reasonably necessary''), Section I.B.4. at 11 (``In view of 
the specialist's central position in the Exchange's continuous two-
way agency auction market, a specialist should proceed as follows . 
. . [e]qually and impartially provide accurate and timely market 
information to all inquiring members in a professional and courteous 
manner.''), and Section I.B.5. at 12 (A specialist should 
``[p]romptly provide information when necessary to research the 
status of an order or a questioned trade and cooperate with other 
members in resolving and adjusting errors.''). Relevant excerpts of 
the 2004 Floor Official Manual are attached as Exhibit 3 of this 
filing.
    \9\ See id. at Section I.A. at 7 (``specialist helps ensure that 
such markets are fair, orderly, operationally efficient and 
competitive with all other markets in those securities'').
    \10\ See id. at Section I.B.3. at 10-11 (``[i]n opening and 
reopening trading in a listed security, a specialist should . . . 
[s]erve as the market coordinator for the securities in which the 
specialist is registered by exercising leadership and managing 
trading crowd activity and promptly identifying unusual market 
conditions that may affect orderly trading in those securities, 
seeking the advice and assistance of Floor Officials when 
appropriate'' and ``[a]ct as a catalyst in the markets for the 
securities in which the specialist is registered, making all 
reasonable efforts to bring buyers and sellers together to 
facilitate the public pricing of orders, without acting as principal 
unless reasonably necessary'').
    \11\ See id. at Section I.B.4. at 11 (``In view of the 
specialist's central position in the Exchange's continuous two-way 
agency auction market, a specialist should proceed as follows . . . 
[e]qually and impartially provide accurate and timely market 
information to all inquiring members in a professional and courteous 
manner.'').
    \12\ See id. at Section I.B.5. at 12 (A specialist should 
``[p]romptly provide information when necessary to research the 
status of an order or a questioned trade and cooperate with other 
members in resolving and adjusting errors.'').
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B. DMM Access to Additional Order Information

    Each SRO proposes to make Exchange systems available to a DMM at 
the post that display the following types of information about 
securities in which the DMM is registered: (A) Aggregated information 
about buying and selling interest; \13\ (B) disaggregated information 
about the price and size of any individual order or e-Quote and the 
entering and clearing firm information for such orders, except that 
Exchange systems would not make available to DMMs information about any 
order or e-Quote, or portion thereof, that a market participant has 
elected not to display to a DMM; and (C) post-trade information.\14\ 
The Proposals would make available to DMMs disaggregated information 
about the following interest in securities in which the DMM is 
registered: (a) The price and size of all displayable interest 
submitted by off-Floor participants (off-Floor participants may submit 
non-displayable interest that is hidden from the DMM); \15\ and (b) all 
e-Quotes, including reserve e-Quotes, that the Floor broker has not 
elected to exclude from availability to the DMM.\16\
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    \13\ Exchange systems currently make available to DMMs aggregate 
information about the following interest in securities in which the 
DMM is registered: (a) All displayable interest submitted by off-
floor participants; (b) all Minimum Display Reserve orders, 
including the reserve portion; (c) all displayable floor broker 
agency interest files (``e-Quotes''); (d) all Minimum Display 
Reserve e-Quotes, including the reserve portion; and (e) the reserve 
quantity of Non-Display Reserve e-Quotes, unless the floor broker 
elects to exclude that reserve quantity from availability to the 
DMM.
    \14\ For the latter two categories, the DMM also would have 
access to entering and clearing firm information for each order and, 
as applicable, the badge number of the floor broker representing the 
order. According to the Exchanges, the systems would not contain any 
information about the ultimate customer (i.e., the name of the 
member or member organization's customer) in a transaction.
    \15\ See NYSE and NYSE MKT Rule 13, defining non-displayed order 
types.
    \16\ The Exchanges previously permitted DMMs to have access to 
Exchange systems that contained the disaggregated order information 
described above. The Exchanges stopped making such information 
available to DMMs on January 19, 2011. See NYSE and NYSE Amex 
Information Memo 11-03.
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C. Conforming Amendments and Floor Broker e-Quote Information

    The Exchanges also propose to make conforming amendments to their 
rules to reflect the additional order information that would be 
available to DMMs through Exchange systems, and to specify what 
information about e-Quotes is available to the DMM. Specifically, the 
Exchanges propose to revise NYSE Rule 70 and NYSE MKT Rule 70 governing 
e-Quotes to reflect that disaggregated order information would be 
available to the DMM except as elected otherwise. The Exchanges would 
allow a Floor broker to enter e-Quotes with reserve interest (``Reserve 
e-Quote'') with or without a displayable portion.
    A Reserve e-Quote with a displayable portion would participate in 
manual and automatic executions. Order information at each price point, 
including the reserve portion, would be included in the aggregate 
interest available to the DMM. Order information at each price point 
would be available to the DMM on a disaggregated basis as well. If the 
Floor broker chooses to exclude the Reserve e-Quote with a displayable 
portion from the DMM, then the DMM would have access to the entire 
portion on an aggregated basis but would not have access to any of that 
interest on a disaggregated basis.
    A Reserve e-Quote with an undisplayable portion would also 
participate in manual and automatic executions. Like the Reserve e-
Quote with a displayable portion, order information at each price point 
would be included in the aggregate interest available to the DMM. 
Again, like the Reserve e-Quote with a displayable portion, order 
information at each price point would be available to the DMM on a 
disaggregated basis as well. If the Floor broker chooses to exclude the 
Reserve e-Quote with an undisplayable portion from the DMM, however, 
then the DMM would not have access to such interest on either an 
aggregated basis or a disaggregated basis. Such interest would not 
participate in manual executions.
    In addition, the Exchanges propose to delete rules which currently 
prohibit DMMs from using the Display Book system to access information 
about e-Quotes excluded from the aggregated agency interest and Minimum 
Display Reserve Order information, other than for the purpose of 
effecting transactions that are reasonably imminent where such Floor 
broker agency and Minimum Display Reserve Order interest information is 
necessary to effect such transaction.\17\
---------------------------------------------------------------------------

    \17\ See proposed deletions to NYSE Rule 104(a)(6) and NYSE MKT 
Rule 104(a)(b).
---------------------------------------------------------------------------

    The Exchanges note that both Floor brokers and off-Floor 
participants would have the continued ability to enter partially or 
completely ``dark'' orders that are not visible to the DMM, which would 
prevent any communication about such interest between the DMM and Floor 
brokers.

D. Ability of DMMs To Provide Market Information on the Trading Floor

    The Exchanges also propose to modify the manner under which DMMs 
would be permitted to provide market information to Floor brokers and 
visitors on the trading floor, provided that the market participant 
entering the order had not opted out of such availability. 
Specifically, the proposed rules would permit a DMM to provide the 
market information to which he or she has access to a: (1) Floor broker 
in response to an inquiry in the normal course of business; or (2) 
visitor to the trading floor for the purpose of demonstrating methods 
of trading. As such, Floor brokers would be able to access 
disaggregated order information that market participants have not 
otherwise elected to be hidden from the DMM. A Floor broker would not 
be able to submit such an inquiry for market information by electronic 
means, and the DMM's response containing market information could not 
be delivered through electronic means.
    Because the proposed rule expands on and incorporates the current 
SRO rules regarding disclosure of order information by DMMs, the 
Exchanges are proposing to delete these rules.\18\ The current rules 
provide that a DMM may disclose market information for three purposes. 
First, a DMM may disclose market information for the purpose of 
demonstrating the methods of trading to visitors to the trading floor.

[[Page 46663]]

This aspect of the current rule is replicated in the proposed rules. 
Second, a DMM may disclose market information to other market centers 
in order to facilitate the operation of the Intermarket Trading System 
(``ITS''). According to the Exchanges, this text is obsolete as the ITS 
Plan has been eliminated and therefore the Exchanges are proposing to 
delete it. Third, a DMM may, while acting in a market making capacity, 
provide information about buying or selling interest in the market, 
including (a) aggregated buying or selling interest contained in Floor 
broker agency interest files other than interest the broker has chosen 
to exclude from the aggregated buying and selling interest, (b) 
aggregated interest of Minimum Display Reserve Orders and (c) the 
interest included in DMM interest files, excluding Capital Commitment 
Schedule (``CCS'') interest as described in Rule 1000(c), in response 
to an inquiry from a member conducting a market probe in the normal 
course of business. The proposed rules would permit DMMs to provide 
Floor brokers not only with the same aggregated order information that 
DMMs currently are permitted to provide under current rules, but also 
with the disaggregated and post-trade order information described 
above.\19\
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    \18\ The Exchanges are also proposing conforming amendments to 
correct cross-references to the former rule.
    \19\ Because DMMs on the trading floor do not have access to CCS 
interest information, the proposed rule does not specify that DMMs 
would not be disseminating such information.
---------------------------------------------------------------------------

    The proposed rules would permit a DMM to provide market information 
to a Floor broker in response to a specific request by the Floor broker 
to the DMM at the post, rather than specifying that the information 
must be provided ``in response to an inquiry from a member conducting a 
market probe in the normal course of business,'' as currently provided 
in the SRO rules. Under the Proposals, Floor brokers would not have 
access to Exchange systems that provide disaggregated order 
information, and Floor brokers would only be able to access such market 
information through a direct manual interaction with a DMM at the post.

III. Comment Letters

    The Commission received two comment letters in response to the 
Proposals.\20\ The first commenter offered several arguments in support 
of the Proposals. First, the commenter stated that, by permitting DMMs 
to use both pre- and post-trade information that is already present on 
the Exchanges' systems, the Proposals promote the legitimate Floor 
function of matching buyers and sellers.\21\ This could promote just 
and equitable principles of trade, and would be in the public 
interest.\22\ According to this commenter, the Proposals would enable 
market participants to trade larger blocks of stock with minimal market 
impact and could improve execution quality, especially for large buy-
side institutions such as mutual funds that trade on behalf of retail 
investors.\23\ The commenter also stated that the Proposals contained 
sufficient safeguards to protect investors.\24\ Specifically, the 
commenter stated that institutional investors monitor execution quality 
very closely, and that if the Proposals were to hurt execution quality 
on the Exchanges, market participants would migrate to other 
exchanges.\25\ The commenter also stated that the Proposals do not 
permit unfair discrimination, as any market participant that wanted to 
avail itself to such disaggregated order information could route its 
orders to Floor brokers.\26\
---------------------------------------------------------------------------

    \20\ See supra note 5.
    \21\ Id. at 2, 4.
    \22\ See Angel letter at 7-8.
    \23\ Id. at 2.
    \24\ Id. at 7.
    \25\ Id. at 5.
    \26\ Id. at 6-7.
---------------------------------------------------------------------------

    The second commenter expressed qualified support for the 
proposal.\27\ Citing its research, this commenter stated that 
communicating partially disaggregated order information from DMMs to 
Floor brokers would have a positive effect on price discovery, as it 
would assist DMMs and Floor brokers in finding the counterparties for 
certain trades.\28\ In this way, the commenter believed that the 
Proposals could incentivize transactions and contribute to greater 
liquidity in the market.\29\ However, the commenter also noted the 
importance of maintaining controls on the dissemination of such 
information, as the dissemination of excessive information may be 
detrimental to the investor that originated the order.\30\ In that 
regard, the commenter noted that NYSE maintained a system of formal 
rules and sanctions, in addition to the informal discipline that exists 
on the Floor, that safeguard the disclosure of order information.\31\ 
In contrast, however, the commenter noted that such controls did not 
exist outside of the Floor.\32\ As such, the commenter stated that 
disaggregated order information should not be made available to market 
participants outside the floor of the NYSE, as there would ``be no 
means to control the use that this information is put to.'' \33\
---------------------------------------------------------------------------

    \27\ See LSE letter, supra note 5.
    \28\ Id. at 2-3.
    \29\ Id. at 1-2.
    \30\ Id. at 2.
    \31\ Id.
    \32\ Id.
    \33\ Id.
---------------------------------------------------------------------------

IV. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2013-21 and NYSEMKT-2013-25 and Grounds for Disapproval Under 
Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act to determine whether the Proposals should be 
approved or disapproved. Institution of such proceedings is appropriate 
at this time in view of the legal and policy issues raised by the 
Proposals that are discussed below. Institution of these proceedings 
does not indicate that the Commission has reached any conclusions with 
respect to any of the issues involved. Rather, as described in greater 
detail below, the Commission seeks and encourages interested persons to 
provide additional comment to inform the Commission's analysis of 
whether to approve or disapprove the Proposals.
    Pursuant to Section 19(b)(2)(B), the Commission is providing notice 
of the grounds for disapproval under consideration. In particular, 
Section 6(b)(5) of the Act \34\ requires that the rules of an exchange 
be designed, among other things, 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; and are not designed to permit 
unfair discrimination between customers, issuers, brokers, or dealers. 
Section 6(b)(8) of the Act \35\ requires that the rules of an exchange 
do not impose any burden on competition not necessary or appropriate in 
furtherance of the Act.
---------------------------------------------------------------------------

    \34\ 15 U.S.C. 78f(b)(5).
    \35\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    In the Proposals, the Exchanges, among other things, take the 
position that ``[b]roadening the scope of information that DMMs can 
provide Floor brokers will assist DMMs with carrying out their 
historical function of bringing Floor brokers together to facilitate 
block and other large transactions. . . .'' \36\ The Exchanges also 
provide scenarios where a Floor broker that receives disaggregated 
information about the price and size of individual orders on the 
Exchange books, along with the identity of the

[[Page 46664]]

broker-dealer that entered the order, might conceivably be better able 
to facilitate a large transaction for its customer.\37\
---------------------------------------------------------------------------

    \36\ See NYSE Notice, supra note 4, 78 FR at 25121.
    \37\ A similar scenario is provided with respect to the 
provision of disaggregated post-trade information. Id. at 25124.
---------------------------------------------------------------------------

    With respect to the ability of Floor brokers to pass this 
disaggregated information on to their customers, however, the Exchanges 
simply state that ``the Floor broker's customer potentially could 
initiate direct contact with the member organization'' that entered the 
order, and thus the re-transmittal of this information ``provides a 
sort of check of the principal on the agent and ensures that the agent 
adds value.'' \38\ But the Exchanges go on to say that the wider off-
floor dissemination of disaggregated information ``presents obvious 
dangers,'' given that Exchange rules restricting the proprietary 
trading of DMMs and requiring the maintenance of informational barriers 
do not apply to other market participants, so that ``there would be no 
mechanism . . . ensuring that the disaggregated information could only 
be used for the benefit of investors.'' \39\ This concern was echoed by 
one of the commenters that, as noted above, did not believe that 
disaggregated information should be available to market participants 
outside the floors of the Exchanges.\40\ The Exchanges, however, do not 
address why the dangers that would arise if disaggregated information 
were made available generally to off-floor market participants are not 
present when this same information is made available to off-floor 
market participants that are Floor broker customers. Nor have the 
Exchanges described any mechanism by which they would be able to assure 
that disaggregated information is not misused by Floor broker 
customers. Accordingly, the Commission is concerned that the Exchanges 
have not demonstrated why this aspect of the Proposals is designed to 
protect investors and public interest, and is not designed to permit 
unfair discrimination, or impose an unnecessary or inappropriate burden 
on competition.
---------------------------------------------------------------------------

    \38\ Id. at 25127.
    \39\ Id. at 25127.
    \40\ See LSE Letter, supra note 5, at 2.
---------------------------------------------------------------------------

    The Commission therefore believes that questions are raised as to 
whether the Proposals are consistent with (1) the requirements of 
Section 6(b)(5) of the Act, including whether they would not be 
designed to permit unfair discrimination, or would promote just and 
equitable principles of trade, or protect investors and the public 
interest; and (2) the requirements of Section 6(b)(8) of the Act, 
including whether they would impose an unnecessary or inappropriate 
burden on competition.

V. Solicitation of Comments

    The Commission requests that interested persons provide written 
submissions of their views, data and arguments with respect to the 
concerns identified above, as well as any others they may have with the 
Proposals. In particular, the Commission invites the written views of 
interested persons concerning whether the Proposals are inconsistent 
with Section 6(b)(5), Section 6(b)(8) or any other provision of the 
Act, or the rules and regulation thereunder. Although there do not 
appear to be any issues relevant to approval or disapproval which would 
be facilitated by an oral presentation of views, data, and arguments, 
the Commission will consider, pursuant to Rule 19b-4, any request for 
an opportunity to make an oral presentation.\41\
---------------------------------------------------------------------------

    \41\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Pub. L. 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular Proposals by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views and 
arguments regarding whether the Proposals should be disapproved by 
August 22, 2013. Any person who wishes to file a rebuttal to any other 
person's submission must file that rebuttal by September 5, 2013. 
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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2013-21 and SR-NYSEMKT-2013-25 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-NYSE-2013-21 and SR-
NYSEMKT-2013-25. These file numbers 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 Proposals that 
are filed with the Commission, and all written communications relating 
to the Proposals 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 such filings also will be available 
for inspection and copying at the principal office of the Exchanges. 
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-NYSE-2013-21 
and SR-NYSEMKT-2013-25 and should be submitted on or before August 22, 
2013. Rebuttal comments should be submitted by September 5, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\42\
---------------------------------------------------------------------------

    \42\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-18472 Filed 7-31-13; 8:45 am]
BILLING CODE P