Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending Rules 7.29E and 1.1E To Provide for a Delay Mechanism, 10828-10832 [2017-02994]
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Federal Register / Vol. 82, No. 30 / Wednesday, February 15, 2017 / Notices
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published Amendment No. 1 for
comment in the Federal Register on
September 26, 2016.5 The Commission
received one comment in response to
the proposed rule change, as modified
by Amendment No. 1, to which the
Exchange responded.6 On October 4,
2016, the Commission extended the
time period within which to approve
the proposed rule change, disapprove
the proposed rule change, or institute
proceedings to determine whether to
approve or disapprove the proposed
rule change to November 15, 2016.7
On November 2, 2016, the Exchange
filed Amendment No. 2 to the proposed
rule change.8 On November 21, 2016,
the Commission instituted proceedings
to determine whether to approve or
disapprove the proposed rule change, as
modified by Amendment Nos. 1 and 2.9
Following the Order Instituting
Proceedings, the Commission received
several additional comment letters.10
On December 9, 2016, the Exchange
filed Amendment No. 3 to the proposed
including their composition, product release dates,
and further detail on the reasonableness of their
applicable fees; (iv) added an explanation for the
varying fee differences for the same Gb usage for
third party data feeds, DTCC, and Virtual Control
Circuit.
5 See Securities Exchange Act Release No. 34–
78887 (September 20, 2016), 81 FR 66095.
6 See letter to Brent J. Fields, Secretary,
Commission, from John Ramsay, Chief Market
Policy Officer, Investors Exchange LLC (‘‘IEX Letter
I’’), dated September 9, 2016.
On September 23, 2016, the NYSE submitted a
response to the IEX letter (‘‘Response Letter I’’)
which is available at https://www.sec.gov/
comments/sr-nyse-2016-45/nyse201645-3.pdf.
7 See Securities Exchange Act Release No. 34–
78966 (September 28, 2016), 81 FR 68475.
8 Amendment No. 2 is available on the
Commission’s Web site at https://www.sec.gov/
comments/sr-nyse-2016-45/nyse201645-4.pdf.
9 See Securities Exchange Act Release 34–79316
(November 15, 2016), 81 FR 83303.
10 See letter to Brent J. Fields, Commission, from
Adam C. Cooper, Senior Managing Director and
Chief Legal Officer, Citadel Securities, dated
December 12, 2016 (‘‘Citadel Letter’’); letter to Brent
J. Fields, Commission, from Melissa MacGregor,
Managing Director and Associate General Counsel,
SIFMA, dated December 12, 2016 (‘‘SIFMA Letter
I’’); letter to Brent J. Fields, Commission, from Joe
Wald, Chief Executive Officer, Clearpool Group,
dated December 16, 2016 (‘‘Clearpool Letter’’); letter
to Brent J. Fields, Secretary, Commission, from John
Ramsay, Chief Market Policy Officer, Investors
Exchange LLC (IEX), dated December 21, 2016
(‘‘IEX Letter II’’); letter to Brent J. Fields,
Commission, from David L. Cavicke, Chief Legal
Officer, Wolverine LLC (‘‘Wolverine Letter’’); letter
to Bent J. Fields, Secretary, Commission, from
Stefano Durdic, Managing Director, R2G Services,
LLC, dated January 21, 2017 (‘‘R2G Letter’’); letter
to Brent J. Fields, Commission, from Melissa
MacGregor, Managing Director and Associate
General Counsel, SIFMA, dated February 6, 2017
(‘‘SIFMA Letter II’’). All comments received by the
Commission on the proposed rule change are
available on the Commission’s Web site at: https://
www.sec.gov/comments/sr-nyse-2016-45/
nyse201645.shtml.
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rule change.11 Amendment No. 3, which
supersedes and replaces the proposed
rule change, as modified by Amendment
Nos. 1 and 2, in its entirety, was
published for comment in the Federal
Register on December 29, 2016.12 On
January 17, 2017, the Exchange
responded to the comment letters
submitted after the OIP and prior to
January 17, 2017.13 On February 7,
2017, the Exchange filed Amendment
No. 4 to the proposed rule change.14
Section 19(b)(2) of the Act15 provides
that, after initiating proceedings, the
Commission shall issue an order
approving or disapproving the proposed
rule change not later than 180 days after
the date of publication of notice of the
filing of the proposed rule change. The
Commission may extend the period for
issuing an order approving or
disapproving the proposed rule change,
however, by not more than 60 days if
the Commission determines that a
longer period is appropriate and
publishes the reasons for such
determination. The proposed rule
change was published for notice and
comment in the Federal Register on
August 17, 2016.16 February 13, 2017 is
180 days from that date, and April 14,
2017 is an additional 60 days from that
date.
The Commission finds it appropriate
to designate a longer period within
which to issue an order approving or
disapproving the proposed rule change
so that it has sufficient time to consider
the proposed rule change, as modified
by Amendment Nos. 1–4, the issues
raised in the comment letters that have
been submitted in connection therewith,
and the Exchange’s response to the
comments.
Accordingly, the Commission,
pursuant to Section 19(b)(2) of the
Act,17 designates April 14, 2017 as the
date by which the Commission should
either approve or disapprove the
proposed rule change, as modified by
Amendments Nos. 1–4.
11 Amendment No. 3, as filed by the Exchange, is
available at https://www.sec.gov/comments/sr-nyse2016-45/nyse201645-5.pdf.
12 See Securities Exchange Act Release No. 34–
79674 (December 22, 2016), 81 FR 96053 (‘‘Notice
of Current Proposal’’).
13 See NYSE Response Letter II (‘‘Response Letter
II’’), available at https://www.sec.gov/comments/srnyse-2016-45/nyse201645-1502013-130586.pdf. The
R2G and SIFMA II Letters, supra note 10, were
submitted after the Response Letter II.
14 Amendment No. 4, as filed by the Exchange, is
available at https://www.sec.gov/comments/sr-nyse2016-45/nyse201645-1570711-131690.pdf.
15 15 U.S.C. 78s(b)(2).
16 See supra note 3.
17 15 U.S.C. 78s(b)(2).
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For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017–02996 Filed 2–14–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–79998; File No. SR–
NYSEMKT–2017–05]
Self-Regulatory Organizations; NYSE
MKT LLC; Notice of Filing of Proposed
Rule Change Amending Rules 7.29E
and 1.1E To Provide for a Delay
Mechanism
February 9, 2017.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that on January
27, 2017, NYSE MKT LLC (the
‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with
the Securities and Exchange
Commission (the ‘‘Commission’’) the
proposed rule change as described in
Items I and II below, which Items have
been prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Rules 7.29E and 1.1E to provide for a
Delay Mechanism. The proposed rule
change is available on the Exchange’s
Web site at www.nyse.com, at the
principal office of the Exchange, and at
the Commission’s Public Reference
Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
18 17
CFR 200.30–3(a)(57).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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Only (‘‘ALO’’) Order or Day Intermarket
Sweep Order (‘‘ISO’’) functionality and
all Pegged Orders would not be
displayed.6
1. Purpose
The Exchange proposes to amend
Rules 7.29E and 1.1E to provide for an
intentional delay to specified order
processing, which would be referred to
as the ‘‘Delay Mechanism.’’
To effect its transition to Pillar, the
Exchange has adopted the rule
numbering framework of the NYSE Arca
Equities, Inc. (‘‘NYSE Arca Equities’’)
rules for Exchange cash equities trading
on the Pillar trading platform.4 As
described in the Framework Filing, the
Exchange is denoting the rules
applicable to cash equities trading on
Pillar with the letter ‘‘E’’ to distinguish
such rules from current Exchange rules
with the same numbering.
The Exchange has also proposed
trading rules for cash equity trading on
Pillar, which are based on the trading
rules of NYSE Arca Equities.5 With
Pillar, the Exchange has proposed to
transition its cash equities trading
platform from a Floor-based market with
a parity allocation model to a fully
automated price-time priority allocation
model that trades all NMS Stocks.
The Exchange proposes a delay
mechanism on Pillar that would add the
equivalent of 350 microseconds of
latency to inbound and outbound order
messages, as described in greater detail
below. The requirements for the
proposed Delay Mechanism would be
set forth in Rule 7.29E, and a definition
of ‘‘Delay Mechanism’’ would be in Rule
1.1E. The Exchange’s proposed Delay
Mechanism is based in part on the
operation of the intentional delay
mechanism of Investors Exchange LLC
(‘‘IEX’’). In addition, when the Exchange
implements the Delay Mechanism, it
would no longer offer Add Liquidity
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A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
Proposed Rule Changes
As noted above, the proposed Delay
Mechanism would function similarly to
the intentional delay mechanism of IEX,
which IEX refers to as the ‘‘IEX POP.’’
The IEX POP adds the equivalent of 350
microseconds of latency between the
network access point of the POP and
IEX’s matching engines at its primary
data center.7 IEX uses a hardware
solution to add its intentional delay via
physical distance and coiled optical
fiber. Similarly, using a software
solution, the Exchange proposes that the
Delay Mechanism would add 350
microseconds of latency to the
processing of specified inbound and
outbound communications.
As described in greater detail below,
except when routing orders, the
Exchange’s proposed Delay Mechanism
would provide for the addition of
latency under the same circumstances
as the IEX POP.
The Exchange proposes to add
paragraph (y) to Rule 1.1E, which is
currently ‘‘Reserved,’’ to define ‘‘Delay
Mechanism.’’ As proposed, the Delay
Mechanism would mean a delay that is
an equivalent of 350 microseconds of
latency that is added to specified order
processing. This delay would be in
addition to any natural latency inherent
in accessing the Exchange and Away
Markets.8
Proposed Rule 1.1E(y) would further
provide that due to force majeure events
and acts of third parties, the Exchange
does not guarantee that the delay would
always be 350 microseconds and that
4 See Securities Exchange Act Release No. 79242
(November 4, 2016), 81 FR 79081 (November 10,
2016) (SR–NYSEMKT–2016–97) (Notice and Filing
of Immediate Effectiveness of Proposed Rule
Change) (the ‘‘Framework Filing’’). In addition, the
Exchange has filed a proposed rule change to
support Exchange trading of securities listed on
other national securities exchanges on an unlisted
trading privileges basis, including Exchange Traded
Products (‘‘ETP’’) listed on other exchanges. See
Securities Exchange Act Release No. 79400
(November 25, 2016), 81 FR 86750 (December 1,
2016) (SR–NYSEMKT–2016–103) (Notice) (the
‘‘ETP Listing Rules Filing’’).
5 See SR–NYSEMKT–2017–1 (the ‘‘Trading Rules
Filing’’). The Exchange has also filed a proposed
rule change to establish market maker obligations
when trading on the Pillar trading platform. See
SR–NYSEMKT–2017–04 (the ‘‘Market Maker
Filing’’). After the Commission approves the ETP
Listing Rules Filing, Market Maker Filing, and
Trading Rules Filing, the Exchange will transition
to Pillar on a date announced by Trader Update.
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6 In the Trading Rules Filing, the Exchange
proposes Rule 7.31E (Orders and Modifiers), which
is based on NYSE Arca Equities Rule 7.31.
Therefore, as proposed, ALO Order, Day ISO Order,
and Pegged Order functionality for the Exchange
would be based on NYSE Arca Equities ALO, Day
ISO, and Pegged Order functionality, including that
Primary Pegged Orders would be required to have
a minimum display quantity. Because the Exchange
would transition to Pillar once the Commission
approves the ETP Listing Rules Filing, Market
Maker Filing, and Trading Rules Filing, which may
be prior to approval of the Delay Mechanism, before
implementing the Delay Mechanism, the Exchange
will file a separate proposed rule change to
eliminate ALO and Day ISO Orders and related
functionality and to provide that Primary Pegged
Orders would not be displayed.
7 See IEX Rule 11.510 (Connectivity).
8 The term ‘‘Away Market’’ is defined in Rule
1.1E(ff) to mean any exchange, alternate trading
system (‘‘ATS’’) or other broker-dealer (1) with
which the Exchange maintains an electronic linkage
and (2) that provides instantaneous responses to
orders routed from the Exchange and that the
Exchange will designate from time to time those
ATS’s or other broker-dealers that qualify as Away
Markets.
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10829
the Exchange would periodically
monitor such latency, and would make
adjustments to the latency as reasonably
necessary to achieve consistency with
the 350 microsecond target as soon as
commercially practicable. The proposed
rule would further provide that, if the
Exchange determines to increase or
decrease the delay period, it would
submit a rule filing pursuant to Section
19 of the Act. This proposed rule text
is based on Supplementary Material .20
[sic] (POP Latency) to IEX Rule 11.510
without any substantive differences.
The Exchange proposes to add
paragraph (b) to Rule 7.29E to describe
the Delay Mechanism.9 Under proposed
Rule 7.29E(b)(1), the Exchange would
apply the Delay Mechanism to the
following:
• All inbound communications from
an ETP Holder (proposed Rule
7.29E(b)(1)(A)). This proposed rule text
is based on IEX Rule 11.510(b)(1), which
provides that ‘‘Inbound POP Latency’’
applies to all inbound communications
(including, without limitation, order
messages and cancel messages). The
Exchange’s proposal to apply the Delay
Mechanism to all inbound
communications from an ETP Holder
would cover all incoming orders, as
well as any requests to cancel or modify
a resting order. The Exchange’s proposal
to apply the Delay Mechanism to all
inbound communications from an ETP
Holder would have the same effect as
IEX’s Inbound POP Latency because it
would add 350 microseconds of delay to
all incoming messages to the Exchange.
• All outbound communications to
an ETP Holder (proposed Rule
7.29E(b)(1)(B)). This proposed rule text
is based on IEX Rule 11.510(b)(2), which
provides that ‘‘Outbound POP Latency’’
applies to all outbound communications
(including, without limitation,
execution report messages and quote
update messages). The Exchange’s
proposal to apply the Delay Mechanism
to all outbound communications to an
ETP Holder would cover Exchange
messages to an ETP Holder that an order
has been accepted, rejected, cancelled,
modified, or executed. The Exchange’s
proposal to apply the Delay Mechanism
to all outbound communications to an
ETP Holder would have the same effect
as IEX’s Outbound POP Latency because
it would add 350 microseconds of delay
to all outgoing messages to an ETP
Holder from the Exchange. Together
with the application of the proposed
Delay Mechanism to all inbound
9 In the Trading Rules Filing, the Exchange has
proposed that Rule 7.29E would be titled ‘‘Access’’
and has proposed paragraph (a) to Rule 7.29E to
specify the general access requirements to the
Exchange.
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communications to the Exchange, there
would be 700 microseconds of
additional round-trip latency in a report
received by an ETP Holder of an
execution or partial execution on the
Exchange.
• All outbound communications the
Exchange routes to an Away Market
(proposed Rule 7.29E(b)(1)(C)) and all
inbound communications from an Away
Market about a routed order (proposed
Rule 7.29E(b)(1)(D)). Under proposed
Rule 7.37E, the Exchange determines
whether to route an order after it has
matched orders for execution against
orders in the Exchange Book.10 If the
Exchange determines to route an order,
either because it would trade through a
protected quotation or has an
instruction to be routed to a primary
listing market, the Exchange would
apply the Delay Mechanism before
routing such order. This proposed rule
text would therefore provide that an
order that the Exchange routes to an
Away Market would have 700
microseconds of added delay before it is
routed: First a 350 microsecond delay
before the order is received by the
Exchange’s matching engines under
proposed Rule 7.29E(b)(1)(A) and a
second 350 microsecond delay under
proposed Rule 7.29E(b)(1)(C) when the
order is routed. After the Exchange
applies the Delay Mechanism to a
routable order, the routed order would
be subject to any natural latency
inherent in accessing such Away
Market.
Any inbound communications to the
Exchange from the Away Market about
such routed order, whether a rejection
or execution report, would also be
subject to the Delay Mechanism. In
addition, any such report forwarded to
the ETP Holder that entered the order
would then be subject to an additional
Delay Mechanism under proposed Rule
7.29E(b)(1)(B). Accordingly, the
Exchange would add a total of 1,400
microseconds of round-trip delay to an
order that the Exchange routes to an
Away Market. The Exchange’s proposed
Delay Mechanism for orders that route
would function differently from the IEX
POP with respect to routable orders.
Under IEX Rule 11.510, a routable order
on IEX must traverse the IEX POP to
access IEX’s routing logic, and any
orders that the IEX routing logic
determines to send to the IEX matching
engine must traverse an additional IEX
10 See proposed Rule 7.37E(b), Trading Rules
Filing, supra note 5 (‘‘Unless an order has an
instruction not to route, after being matched for
execution with any contra-side orders in the
Exchange Book pursuant to paragraph (a) of this
Rule, marketable orders will be routed to Away
Market(s).’’)
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POP. However, IEX does not include an
IEX POP between its routing logic and
routing to markets other than IEX.11
Accordingly, a routable order sent to
IEX has 700 microseconds of delay
before it reaches the IEX matching
engine and an additional 700
microseconds of delay before any
reports from the IEX matching engine
are sent to the order sender, for a roundtrip delay of 1,400 microseconds.
However, a routable order sent to IEX’s
routing logic that is routed to an away
market has only 350 microseconds of
additional delay for inbound orders and
only 350 microseconds of delay for
outbound information to the order
sender, for a round-trip delay of 700
microseconds.
The Exchange believes its proposed
application of the Delay Mechanism to
routable orders is consistent with how
the Exchange already functions, which
is that orders are matched for execution
before routing (unless the order has an
instruction to route to the primary
listing market). As such, if there is an
execution opportunity on the Exchange,
an order would be subject to the same
additional latency regardless of whether
the order is routable or not. Only if the
Exchange were to route an order would
it add the latency of the Delay
Mechanism a second time. The
Exchange believes that this additional
application of the proposed Delay
Mechanism would ensure that the
Exchange would not have a speed
advantage over ETP Holders in routing
the unexecuted quantity of an order to
an Away Market. Specifically, an ETP
Holder would be subject to the same
latency in learning of an execution on
the Exchange (350 microseconds after
the execution) as the Exchange would
apply to routing such order (350
microseconds before routing such
order). Accordingly, an ETP Holder that
would rather route directly to Away
Markets would be able to operate on a
level playing field with the Exchange’s
routing broker.
• All outbound communications (e.g.,
bids, offers, and trades) to the
Exchange’s proprietary data feeds
(proposed Rule 7.29E(b)(1)(E)). This
proposed rule text is based on IEX Rule
11.510(b)(1) [sic], which specifies IEX’s
Outbound POP Latency. The Exchange’s
proposal to apply the Delay Mechanism
to all outbound messages to its
proprietary data feeds would have the
same effect as IEX’s Outbound POP
Latency because it would add 350
microseconds of delay before providing
such information to the Exchange’s
proprietary data feed.
11 See
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IEX Rule 11.510(c)(3)(A).
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Under proposed Rule 7.29E(b)(2), the
Exchange would not apply the Delay
Mechanism to the following:
• All inbound communications from
data feeds (proposed Rule
7.29E(b)(2)(A)). This proposed rule text
is based on IEX Rule 11.510(c)(2)(A),
which provides that IEX
communications with away market
centers to receive proprietary market
data do not traverse the IEX POP, and
IEX Rule 11.510(c)(2)(B), which
provides that IEX communications with
the SIPs to receive data feeds do not
traverse the IEX POP. By referencing
data feeds, proposed Rule 7.29E(b)(2)(A)
would be applicable to data feeds
received directly from Away Markets
and data feeds disseminated by a plan
processor. Accordingly, the Exchange’s
proposal not to apply the Delay
Mechanism in these circumstances
would have the same effect as how IEX
does not apply the IEX POP to its
receipt of market data.
• Order processing and order
execution on the Exchange’s Book
(proposed Rule 7.29E(b)(2)(B)). This
proposed rule text is based on IEX Rule
11.510(c)(1), which provides that order
book processing does not traverse the
IEX POP. Accordingly, all actions taken
within the Exchange’s Book, including
calculating the BBO, NBBO, or PBBO,12
assigning working prices and working
times to orders,13 and ranking and
executing orders, would not be subject
to an additional delay. The Exchange’s
proposal not to apply the Delay
Mechanism to order processing and
order execution on the Exchange’s Book
would have the same effect as how IEX
conducts order processing and order
execution within its book. For example,
the Exchange would not apply the Delay
Mechanism to re-price Pegged Orders,
which would not be displayed on the
Exchange. As with IEX, the Exchange
would update the working price of
Pegged Orders based on an updated
PBBO without any additional delay.
• All outbound communications (e.g.,
bids, offers, and trades) to the plan
processors under Rules 601 and 602 of
Regulation NMS (proposed Rule
12 The term ‘‘BBO’’ is defined in Rule 1.1E(h) as
the best bid or offer that is a protected quotation
on the Exchange. The terms ‘‘NBBO’’ and ‘‘PBBO’’
are defined in Rule 1.1E(dd) as the national best bid
or offer and the protected best bid and offer,
respectively.
13 In the Trading Rules Filing, supra note 5, the
Exchange proposes to define the term ‘‘working
price’’ in Rule 7.36E(a)(3) as the price at which an
order is eligible to trade at any given time, which
may be different from the limit price or display
price of the order and define the term ‘‘working
time’’ in Rule 7.36E(a)(4) as the effective time
sequence assigned to an order for purposes of
determining its priority ranking.
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7.29E(b)(2)(C)). This proposed rule text
is based on IEX Rule 11.510(c)(3)(B),
which provides that IEX
communications with the SIP to
disseminate quotation and last sale
information do not traverse the IEX
POP. The Exchange’s proposal not to
apply the Delay Mechanism to
outbound communications to the plan
processors would therefore have the
same effect as how IEX operates.
The Exchange proposes an additional
difference between its proposed Delay
Mechanism and the IEX POP. As set
forth in Supplementary Material .10
[sic] to IEX Rule 11.510, IEX would not
apply the IEX POP when trading out of
its back up system because it does not
offer connectivity from the IEX POP to
its back up systems. By contrast, the
Exchange proposes that the Delay
Mechanism would be functional
regardless of whether the Exchange is
operating out of its primary or
secondary data center.
*
*
*
*
*
Subject to rule approvals, the
Exchange will announce the
implementation of the Delay
Mechanism by Trader Update, which
may be after the Exchange transitions to
Pillar.
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),14 in general, and furthers the
objectives of Section 6(b)(5),15 in
particular, because it is designed to
prevent fraudulent and manipulative
acts and practices, to promote just and
equitable principles of trade, to foster
cooperation and coordination with
persons engaged in facilitating
transactions in securities, to remove
impediments to, and perfect the
mechanism of, a free and open market
and a national market system and, in
general, to protect investors and the
public interest. The Exchange believes
that the proposed rules to add the
proposed Delay Mechanism would
remove impediments to and perfect the
mechanism of a free and open market
because it would apply a similar delay
to order message processing as the
Commission has recently approved for
IEX, with differences only with respect
to how the Delay Mechanism would
function for orders that route to an
Away Market.16 The Exchange further
believes that the proposed Delay
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
16 Securities Exchange Act Release No. 78101
(June 17, 2016), 81 FR 41141, 41155 (June 23, 2016)
(‘‘IEX Approval Order’’).
Mechanism is not unfairly
discriminatory because it would be
applied uniformly to all Exchange ETP
Holders and may not be bypassed for a
fee or otherwise.
The Exchange further believes that the
proposed Delay Mechanism would
remove impediments to and perfect the
mechanism of a free and open market
and a national market system and would
protect investors and the public interest
because it would provide a choice of
exchanges for market participants that
prefer to trade or list on an exchange
that offers a delay mechanism.
The Exchange also believes that the
proposed Delay Mechanism, as it would
apply to orders that are routed to Away
Markets, would remove impediments to
and perfect the mechanism of a free and
open market and a national market
system and would protect investors and
the public interest because it is designed
in a manner that would enable ETP
Holders that would prefer to route
unexecuted quantities of orders to Away
Markets, rather than having the
Exchange route to Away Markets, to
operate on a level playing field. As
such, this aspect of the proposed Delay
Mechanism is not unfairly
discriminatory and would not impose a
burden on competition because the
Exchange’s outbound router would not
have unique access or preferences with
respect to orders routed to Away
Markets. As such, the Exchange’s
outbound router functionality would be
on substantively comparable terms to a
third party routing broker that is a
member of the Exchange.
In addition, the Exchange believes
that the proposed Delay Mechanism is
consistent with the Commission’s recent
interpretation of Rule 611 of Regulation
NMS.17 The Commission has
interpreted the term ‘‘immediate’’ when
determining whether a trading center
maintains an ‘‘automated quotation’’ for
purposes of Rule 611 to include
response time delays at trading centers
that are de minimis, whether intentional
or not. As such, a trading center may
implement an intentional access delay
that is de minimis, i.e., a delay so short
so as not to frustrate the purposes of
Rule 611 of Regulation NMS by
impairing fair and efficient access to an
exchange’s quotations. In the context of
IEX, the Commission has already found
that an intentional delay of 350
microseconds is de minimis.18
Accordingly, the Exchange believes that
its proposed Delay Mechanism, which
14 15
15 15
VerDate Sep<11>2014
18:44 Feb 14, 2017
Jkt 241001
17 See Securities Exchange Act Release No. 78102
(June 17, 2016), 81 FR 40785 (June 23, 2016) (File
No. S7–03–16) (‘‘Rule 611 Interpretation’’).
18 See IEX Approval Order, supra note 16.
PO 00000
Frm 00098
Fmt 4703
Sfmt 4703
10831
would provide for the same delay
period as the IEX POP under the same
circumstances, is similarly de minimis
for purposes of the Rule 611
Interpretation.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
proposed change is designed to provide
a competitive trading model to IEX. For
this reason, the Exchange has proposed
a Delay Mechanism that would function
similarly to the IEX POP, with the
exception of how the Delay Mechanism
would be applied to routable orders.
The Exchange believes that its proposed
application of the Delay Mechanism to
routable orders would not impose a
burden on competition because it is
designed in a manner that would enable
ETP Holders that would prefer to route
unexecuted quantities of orders to Away
Markets, rather than having the
Exchange route to Away Markets, to
operate on a level playing field. The
Exchange’s proposal is therefore
designed to promote competition by
offering a choice of exchanges to those
ETP Holders and issuers that prefer to
trade or list on an exchange that offers
a delay mechanism. Accordingly, the
proposed rule change is designed to
introduce additional competition among
exchanges so that broker dealers and
issuers have more than one option if
seeking a trading venue that offers an
intentional delay mechanism.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of
publication of this notice in the Federal
Register or such longer period up to 90
days (i) as the Commission may
designate if it finds such longer period
to be appropriate and publishes its
reasons for so finding or (ii) as to which
the self-regulatory organization
consents, the Commission will:
(A) By order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
E:\FR\FM\15FEN1.SGM
15FEN1
10832
Federal Register / Vol. 82, No. 30 / Wednesday, February 15, 2017 / Notices
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:
• 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–
NYSEMKT–2017–05 on the subject line.
Paper Comments
mstockstill on DSK3G9T082PROD with NOTICES
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEMKT–2017–05. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (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
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEMKT–2017–05 and should be
submitted on or before March 8, 2017.
CFR 200.30–3(a)(12).
VerDate Sep<11>2014
18:44 Feb 14, 2017
[FR Doc. 2017–02994 Filed 2–14–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
19 17
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
Eduardo A. Aleman,
Assistant Secretary.
Jkt 241001
Submission for OMB Review;
Comment Request
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of Investor
Education and Advocacy,
Washington, DC 20549–0213.
Extension:
Rule 17d–1; SEC File No. 270–505, OMB
Control No. 3235–0562.
Notice is hereby given that, pursuant
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.), the Securities
and Exchange Commission
(‘‘Commission’’) has submitted to the
Office of Management and Budget
(‘‘OMB’’) a request for extension of the
previously approved collection of
information discussed below.
Section 17(d) (15 U.S.C. 80a–17(d)) of
the Investment Company Act of 1940
(15 U.S.C. 80a et seq.) (the ‘‘Act’’)
prohibits first- and second-tier affiliates
of a fund, the fund’s principal
underwriters, and affiliated persons of
the fund’s principal underwriters, acting
as principal, to effect any transaction in
which the fund or a company controlled
by the fund is a joint or a joint and
several participant in contravention of
the Commission’s rules. Rule 17d–1 (17
CFR 270.17d–1) prohibits an affiliated
person of or principal underwriter for
any fund (a ‘‘first-tier affiliate’’), or any
affiliated person of such person or
underwriter (a ‘‘second-tier affiliate’’),
acting as principal, from participating in
or effecting any transaction in
connection with a joint enterprise or
other joint arrangement in which the
fund is a participant, unless prior to
entering into the enterprise or
arrangement ‘‘an application regarding
[the transaction] has been filed with the
Commission and has been granted by an
order.’’ In reviewing the proposed
affiliated transaction, the rule provides
that the Commission will consider
whether the proposal is (i) consistent
with the provisions, policies, and
purposes of the Act, and (ii) on a basis
different from or less advantageous than
that of other participants in determining
whether to grant an exemptive
application for a proposed joint
PO 00000
Frm 00099
Fmt 4703
Sfmt 4703
enterprise, joint arrangement, or profitsharing plan.
Rule 17d–1 also contains a number of
exceptions to the requirement that a
fund must obtain Commission approval
prior to entering into joint transactions
or arrangements with affiliates. For
example, funds do not have to obtain
Commission approval for certain
employee compensation plans, certain
tax-deferred employee benefit plans,
certain transactions involving small
business investment companies, the
receipt of securities or cash by certain
affiliates pursuant to a plan of
reorganization, certain arrangements
regarding liability insurance policies
and transactions with ‘‘portfolio
affiliates’’ (companies that are affiliated
with the fund solely as a result of the
fund (or an affiliated fund) controlling
them or owning more than five percent
of their voting securities) so long as
certain other affiliated persons of the
fund (e.g., the fund’s adviser, persons
controlling the fund, and persons under
common control with the fund) are not
parties to the transaction and do not
have a ‘‘financial interest’’ in a party to
the transaction. The rule excludes from
the definition of ‘‘financial interest’’ any
interest that the fund’s board of
directors (including a majority of the
directors who are not interested persons
of the fund) finds to be not material, as
long as the board records the basis for
its finding in their meeting minutes.
Thus, the rule contains two filing and
recordkeeping requirements that
constitute collections of information.
First, rule 17d–1 requires funds that
wish to engage in a joint transaction or
arrangement with affiliates to meet the
procedural requirements for obtaining
exemptive relief from the rule’s
prohibition on joint transactions or
arrangements involving first- or secondtier affiliates. Second, rule 17d–1
permits a portfolio affiliate to enter into
a joint transaction or arrangement with
the fund if a prohibited participant has
a financial interest that the fund’s board
determines is not material and records
the basis for this finding in their
meeting minutes. These requirements of
rule 17d–1 are designed to prevent fund
insiders from managing funds for their
own benefit, rather than for the benefit
of the funds’ shareholders.
Based on an analysis of past filings,
Commission staff estimates that 18
funds file applications under section
17(d) and rule 17d–1 per year. The staff
understands that funds that file an
application generally obtain assistance
from outside counsel to prepare the
application. The cost burden of using
outside counsel is discussed below. The
Commission staff estimates that each
E:\FR\FM\15FEN1.SGM
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Agencies
[Federal Register Volume 82, Number 30 (Wednesday, February 15, 2017)]
[Notices]
[Pages 10828-10832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02994]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-79998; File No. SR-NYSEMKT-2017-05]
Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of
Proposed Rule Change Amending Rules 7.29E and 1.1E To Provide for a
Delay Mechanism
February 9, 2017.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on January 27, 2017, NYSE MKT LLC (the ``Exchange'' or
``NYSE MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\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 amend Rules 7.29E and 1.1E to provide for
a Delay Mechanism. The proposed rule change is available on the
Exchange's Web site at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
[[Page 10829]]
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend Rules 7.29E and 1.1E to provide for
an intentional delay to specified order processing, which would be
referred to as the ``Delay Mechanism.''
To effect its transition to Pillar, the Exchange has adopted the
rule numbering framework of the NYSE Arca Equities, Inc. (``NYSE Arca
Equities'') rules for Exchange cash equities trading on the Pillar
trading platform.\4\ As described in the Framework Filing, the Exchange
is denoting the rules applicable to cash equities trading on Pillar
with the letter ``E'' to distinguish such rules from current Exchange
rules with the same numbering.
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 79242 (November 4,
2016), 81 FR 79081 (November 10, 2016) (SR-NYSEMKT-2016-97) (Notice
and Filing of Immediate Effectiveness of Proposed Rule Change) (the
``Framework Filing''). In addition, the Exchange has filed a
proposed rule change to support Exchange trading of securities
listed on other national securities exchanges on an unlisted trading
privileges basis, including Exchange Traded Products (``ETP'')
listed on other exchanges. See Securities Exchange Act Release No.
79400 (November 25, 2016), 81 FR 86750 (December 1, 2016) (SR-
NYSEMKT-2016-103) (Notice) (the ``ETP Listing Rules Filing'').
---------------------------------------------------------------------------
The Exchange has also proposed trading rules for cash equity
trading on Pillar, which are based on the trading rules of NYSE Arca
Equities.\5\ With Pillar, the Exchange has proposed to transition its
cash equities trading platform from a Floor-based market with a parity
allocation model to a fully automated price-time priority allocation
model that trades all NMS Stocks.
---------------------------------------------------------------------------
\5\ See SR-NYSEMKT-2017-1 (the ``Trading Rules Filing''). The
Exchange has also filed a proposed rule change to establish market
maker obligations when trading on the Pillar trading platform. See
SR-NYSEMKT-2017-04 (the ``Market Maker Filing''). After the
Commission approves the ETP Listing Rules Filing, Market Maker
Filing, and Trading Rules Filing, the Exchange will transition to
Pillar on a date announced by Trader Update.
---------------------------------------------------------------------------
The Exchange proposes a delay mechanism on Pillar that would add
the equivalent of 350 microseconds of latency to inbound and outbound
order messages, as described in greater detail below. The requirements
for the proposed Delay Mechanism would be set forth in Rule 7.29E, and
a definition of ``Delay Mechanism'' would be in Rule 1.1E. The
Exchange's proposed Delay Mechanism is based in part on the operation
of the intentional delay mechanism of Investors Exchange LLC (``IEX'').
In addition, when the Exchange implements the Delay Mechanism, it would
no longer offer Add Liquidity Only (``ALO'') Order or Day Intermarket
Sweep Order (``ISO'') functionality and all Pegged Orders would not be
displayed.\6\
---------------------------------------------------------------------------
\6\ In the Trading Rules Filing, the Exchange proposes Rule
7.31E (Orders and Modifiers), which is based on NYSE Arca Equities
Rule 7.31. Therefore, as proposed, ALO Order, Day ISO Order, and
Pegged Order functionality for the Exchange would be based on NYSE
Arca Equities ALO, Day ISO, and Pegged Order functionality,
including that Primary Pegged Orders would be required to have a
minimum display quantity. Because the Exchange would transition to
Pillar once the Commission approves the ETP Listing Rules Filing,
Market Maker Filing, and Trading Rules Filing, which may be prior to
approval of the Delay Mechanism, before implementing the Delay
Mechanism, the Exchange will file a separate proposed rule change to
eliminate ALO and Day ISO Orders and related functionality and to
provide that Primary Pegged Orders would not be displayed.
---------------------------------------------------------------------------
Proposed Rule Changes
As noted above, the proposed Delay Mechanism would function
similarly to the intentional delay mechanism of IEX, which IEX refers
to as the ``IEX POP.'' The IEX POP adds the equivalent of 350
microseconds of latency between the network access point of the POP and
IEX's matching engines at its primary data center.\7\ IEX uses a
hardware solution to add its intentional delay via physical distance
and coiled optical fiber. Similarly, using a software solution, the
Exchange proposes that the Delay Mechanism would add 350 microseconds
of latency to the processing of specified inbound and outbound
communications.
---------------------------------------------------------------------------
\7\ See IEX Rule 11.510 (Connectivity).
---------------------------------------------------------------------------
As described in greater detail below, except when routing orders,
the Exchange's proposed Delay Mechanism would provide for the addition
of latency under the same circumstances as the IEX POP.
The Exchange proposes to add paragraph (y) to Rule 1.1E, which is
currently ``Reserved,'' to define ``Delay Mechanism.'' As proposed, the
Delay Mechanism would mean a delay that is an equivalent of 350
microseconds of latency that is added to specified order processing.
This delay would be in addition to any natural latency inherent in
accessing the Exchange and Away Markets.\8\
---------------------------------------------------------------------------
\8\ The term ``Away Market'' is defined in Rule 1.1E(ff) to mean
any exchange, alternate trading system (``ATS'') or other broker-
dealer (1) with which the Exchange maintains an electronic linkage
and (2) that provides instantaneous responses to orders routed from
the Exchange and that the Exchange will designate from time to time
those ATS's or other broker-dealers that qualify as Away Markets.
---------------------------------------------------------------------------
Proposed Rule 1.1E(y) would further provide that due to force
majeure events and acts of third parties, the Exchange does not
guarantee that the delay would always be 350 microseconds and that the
Exchange would periodically monitor such latency, and would make
adjustments to the latency as reasonably necessary to achieve
consistency with the 350 microsecond target as soon as commercially
practicable. The proposed rule would further provide that, if the
Exchange determines to increase or decrease the delay period, it would
submit a rule filing pursuant to Section 19 of the Act. This proposed
rule text is based on Supplementary Material .20 [sic] (POP Latency) to
IEX Rule 11.510 without any substantive differences.
The Exchange proposes to add paragraph (b) to Rule 7.29E to
describe the Delay Mechanism.\9\ Under proposed Rule 7.29E(b)(1), the
Exchange would apply the Delay Mechanism to the following:
---------------------------------------------------------------------------
\9\ In the Trading Rules Filing, the Exchange has proposed that
Rule 7.29E would be titled ``Access'' and has proposed paragraph (a)
to Rule 7.29E to specify the general access requirements to the
Exchange.
---------------------------------------------------------------------------
All inbound communications from an ETP Holder (proposed
Rule 7.29E(b)(1)(A)). This proposed rule text is based on IEX Rule
11.510(b)(1), which provides that ``Inbound POP Latency'' applies to
all inbound communications (including, without limitation, order
messages and cancel messages). The Exchange's proposal to apply the
Delay Mechanism to all inbound communications from an ETP Holder would
cover all incoming orders, as well as any requests to cancel or modify
a resting order. The Exchange's proposal to apply the Delay Mechanism
to all inbound communications from an ETP Holder would have the same
effect as IEX's Inbound POP Latency because it would add 350
microseconds of delay to all incoming messages to the Exchange.
All outbound communications to an ETP Holder (proposed
Rule 7.29E(b)(1)(B)). This proposed rule text is based on IEX Rule
11.510(b)(2), which provides that ``Outbound POP Latency'' applies to
all outbound communications (including, without limitation, execution
report messages and quote update messages). The Exchange's proposal to
apply the Delay Mechanism to all outbound communications to an ETP
Holder would cover Exchange messages to an ETP Holder that an order has
been accepted, rejected, cancelled, modified, or executed. The
Exchange's proposal to apply the Delay Mechanism to all outbound
communications to an ETP Holder would have the same effect as IEX's
Outbound POP Latency because it would add 350 microseconds of delay to
all outgoing messages to an ETP Holder from the Exchange. Together with
the application of the proposed Delay Mechanism to all inbound
[[Page 10830]]
communications to the Exchange, there would be 700 microseconds of
additional round-trip latency in a report received by an ETP Holder of
an execution or partial execution on the Exchange.
All outbound communications the Exchange routes to an Away
Market (proposed Rule 7.29E(b)(1)(C)) and all inbound communications
from an Away Market about a routed order (proposed Rule
7.29E(b)(1)(D)). Under proposed Rule 7.37E, the Exchange determines
whether to route an order after it has matched orders for execution
against orders in the Exchange Book.\10\ If the Exchange determines to
route an order, either because it would trade through a protected
quotation or has an instruction to be routed to a primary listing
market, the Exchange would apply the Delay Mechanism before routing
such order. This proposed rule text would therefore provide that an
order that the Exchange routes to an Away Market would have 700
microseconds of added delay before it is routed: First a 350
microsecond delay before the order is received by the Exchange's
matching engines under proposed Rule 7.29E(b)(1)(A) and a second 350
microsecond delay under proposed Rule 7.29E(b)(1)(C) when the order is
routed. After the Exchange applies the Delay Mechanism to a routable
order, the routed order would be subject to any natural latency
inherent in accessing such Away Market.
---------------------------------------------------------------------------
\10\ See proposed Rule 7.37E(b), Trading Rules Filing, supra
note 5 (``Unless an order has an instruction not to route, after
being matched for execution with any contra-side orders in the
Exchange Book pursuant to paragraph (a) of this Rule, marketable
orders will be routed to Away Market(s).'')
---------------------------------------------------------------------------
Any inbound communications to the Exchange from the Away Market
about such routed order, whether a rejection or execution report, would
also be subject to the Delay Mechanism. In addition, any such report
forwarded to the ETP Holder that entered the order would then be
subject to an additional Delay Mechanism under proposed Rule
7.29E(b)(1)(B). Accordingly, the Exchange would add a total of 1,400
microseconds of round-trip delay to an order that the Exchange routes
to an Away Market. The Exchange's proposed Delay Mechanism for orders
that route would function differently from the IEX POP with respect to
routable orders. Under IEX Rule 11.510, a routable order on IEX must
traverse the IEX POP to access IEX's routing logic, and any orders that
the IEX routing logic determines to send to the IEX matching engine
must traverse an additional IEX POP. However, IEX does not include an
IEX POP between its routing logic and routing to markets other than
IEX.\11\ Accordingly, a routable order sent to IEX has 700 microseconds
of delay before it reaches the IEX matching engine and an additional
700 microseconds of delay before any reports from the IEX matching
engine are sent to the order sender, for a round-trip delay of 1,400
microseconds. However, a routable order sent to IEX's routing logic
that is routed to an away market has only 350 microseconds of
additional delay for inbound orders and only 350 microseconds of delay
for outbound information to the order sender, for a round-trip delay of
700 microseconds.
---------------------------------------------------------------------------
\11\ See IEX Rule 11.510(c)(3)(A).
---------------------------------------------------------------------------
The Exchange believes its proposed application of the Delay
Mechanism to routable orders is consistent with how the Exchange
already functions, which is that orders are matched for execution
before routing (unless the order has an instruction to route to the
primary listing market). As such, if there is an execution opportunity
on the Exchange, an order would be subject to the same additional
latency regardless of whether the order is routable or not. Only if the
Exchange were to route an order would it add the latency of the Delay
Mechanism a second time. The Exchange believes that this additional
application of the proposed Delay Mechanism would ensure that the
Exchange would not have a speed advantage over ETP Holders in routing
the unexecuted quantity of an order to an Away Market. Specifically, an
ETP Holder would be subject to the same latency in learning of an
execution on the Exchange (350 microseconds after the execution) as the
Exchange would apply to routing such order (350 microseconds before
routing such order). Accordingly, an ETP Holder that would rather route
directly to Away Markets would be able to operate on a level playing
field with the Exchange's routing broker.
All outbound communications (e.g., bids, offers, and
trades) to the Exchange's proprietary data feeds (proposed Rule
7.29E(b)(1)(E)). This proposed rule text is based on IEX Rule
11.510(b)(1) [sic], which specifies IEX's Outbound POP Latency. The
Exchange's proposal to apply the Delay Mechanism to all outbound
messages to its proprietary data feeds would have the same effect as
IEX's Outbound POP Latency because it would add 350 microseconds of
delay before providing such information to the Exchange's proprietary
data feed.
Under proposed Rule 7.29E(b)(2), the Exchange would not apply the
Delay Mechanism to the following:
All inbound communications from data feeds (proposed Rule
7.29E(b)(2)(A)). This proposed rule text is based on IEX Rule
11.510(c)(2)(A), which provides that IEX communications with away
market centers to receive proprietary market data do not traverse the
IEX POP, and IEX Rule 11.510(c)(2)(B), which provides that IEX
communications with the SIPs to receive data feeds do not traverse the
IEX POP. By referencing data feeds, proposed Rule 7.29E(b)(2)(A) would
be applicable to data feeds received directly from Away Markets and
data feeds disseminated by a plan processor. Accordingly, the
Exchange's proposal not to apply the Delay Mechanism in these
circumstances would have the same effect as how IEX does not apply the
IEX POP to its receipt of market data.
Order processing and order execution on the Exchange's
Book (proposed Rule 7.29E(b)(2)(B)). This proposed rule text is based
on IEX Rule 11.510(c)(1), which provides that order book processing
does not traverse the IEX POP. Accordingly, all actions taken within
the Exchange's Book, including calculating the BBO, NBBO, or PBBO,\12\
assigning working prices and working times to orders,\13\ and ranking
and executing orders, would not be subject to an additional delay. The
Exchange's proposal not to apply the Delay Mechanism to order
processing and order execution on the Exchange's Book would have the
same effect as how IEX conducts order processing and order execution
within its book. For example, the Exchange would not apply the Delay
Mechanism to re-price Pegged Orders, which would not be displayed on
the Exchange. As with IEX, the Exchange would update the working price
of Pegged Orders based on an updated PBBO without any additional delay.
---------------------------------------------------------------------------
\12\ The term ``BBO'' is defined in Rule 1.1E(h) as the best bid
or offer that is a protected quotation on the Exchange. The terms
``NBBO'' and ``PBBO'' are defined in Rule 1.1E(dd) as the national
best bid or offer and the protected best bid and offer,
respectively.
\13\ In the Trading Rules Filing, supra note 5, the Exchange
proposes to define the term ``working price'' in Rule 7.36E(a)(3) as
the price at which an order is eligible to trade at any given time,
which may be different from the limit price or display price of the
order and define the term ``working time'' in Rule 7.36E(a)(4) as
the effective time sequence assigned to an order for purposes of
determining its priority ranking.
---------------------------------------------------------------------------
All outbound communications (e.g., bids, offers, and
trades) to the plan processors under Rules 601 and 602 of Regulation
NMS (proposed Rule
[[Page 10831]]
7.29E(b)(2)(C)). This proposed rule text is based on IEX Rule
11.510(c)(3)(B), which provides that IEX communications with the SIP to
disseminate quotation and last sale information do not traverse the IEX
POP. The Exchange's proposal not to apply the Delay Mechanism to
outbound communications to the plan processors would therefore have the
same effect as how IEX operates.
The Exchange proposes an additional difference between its proposed
Delay Mechanism and the IEX POP. As set forth in Supplementary Material
.10 [sic] to IEX Rule 11.510, IEX would not apply the IEX POP when
trading out of its back up system because it does not offer
connectivity from the IEX POP to its back up systems. By contrast, the
Exchange proposes that the Delay Mechanism would be functional
regardless of whether the Exchange is operating out of its primary or
secondary data center.
* * * * *
Subject to rule approvals, the Exchange will announce the
implementation of the Delay Mechanism by Trader Update, which may be
after the Exchange transitions to Pillar.
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) of the
Securities Exchange Act of 1934 (the ``Act''),\14\ in general, and
furthers the objectives of Section 6(b)(5),\15\ in particular, because
it is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, to remove impediments to, and perfect the
mechanism of, a free and open market and a national market system and,
in general, to protect investors and the public interest. The Exchange
believes that the proposed rules to add the proposed Delay Mechanism
would remove impediments to and perfect the mechanism of a free and
open market because it would apply a similar delay to order message
processing as the Commission has recently approved for IEX, with
differences only with respect to how the Delay Mechanism would function
for orders that route to an Away Market.\16\ The Exchange further
believes that the proposed Delay Mechanism is not unfairly
discriminatory because it would be applied uniformly to all Exchange
ETP Holders and may not be bypassed for a fee or otherwise.
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\14\ 15 U.S.C. 78f(b).
\15\ 15 U.S.C. 78f(b)(5).
\16\ Securities Exchange Act Release No. 78101 (June 17, 2016),
81 FR 41141, 41155 (June 23, 2016) (``IEX Approval Order'').
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The Exchange further believes that the proposed Delay Mechanism
would remove impediments to and perfect the mechanism of a free and
open market and a national market system and would protect investors
and the public interest because it would provide a choice of exchanges
for market participants that prefer to trade or list on an exchange
that offers a delay mechanism.
The Exchange also believes that the proposed Delay Mechanism, as it
would apply to orders that are routed to Away Markets, would remove
impediments to and perfect the mechanism of a free and open market and
a national market system and would protect investors and the public
interest because it is designed in a manner that would enable ETP
Holders that would prefer to route unexecuted quantities of orders to
Away Markets, rather than having the Exchange route to Away Markets, to
operate on a level playing field. As such, this aspect of the proposed
Delay Mechanism is not unfairly discriminatory and would not impose a
burden on competition because the Exchange's outbound router would not
have unique access or preferences with respect to orders routed to Away
Markets. As such, the Exchange's outbound router functionality would be
on substantively comparable terms to a third party routing broker that
is a member of the Exchange.
In addition, the Exchange believes that the proposed Delay
Mechanism is consistent with the Commission's recent interpretation of
Rule 611 of Regulation NMS.\17\ The Commission has interpreted the term
``immediate'' when determining whether a trading center maintains an
``automated quotation'' for purposes of Rule 611 to include response
time delays at trading centers that are de minimis, whether intentional
or not. As such, a trading center may implement an intentional access
delay that is de minimis, i.e., a delay so short so as not to frustrate
the purposes of Rule 611 of Regulation NMS by impairing fair and
efficient access to an exchange's quotations. In the context of IEX,
the Commission has already found that an intentional delay of 350
microseconds is de minimis.\18\ Accordingly, the Exchange believes that
its proposed Delay Mechanism, which would provide for the same delay
period as the IEX POP under the same circumstances, is similarly de
minimis for purposes of the Rule 611 Interpretation.
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\17\ See Securities Exchange Act Release No. 78102 (June 17,
2016), 81 FR 40785 (June 23, 2016) (File No. S7-03-16) (``Rule 611
Interpretation'').
\18\ See IEX Approval Order, supra note 16.
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed change is
designed to provide a competitive trading model to IEX. For this
reason, the Exchange has proposed a Delay Mechanism that would function
similarly to the IEX POP, with the exception of how the Delay Mechanism
would be applied to routable orders. The Exchange believes that its
proposed application of the Delay Mechanism to routable orders would
not impose a burden on competition because it is designed in a manner
that would enable ETP Holders that would prefer to route unexecuted
quantities of orders to Away Markets, rather than having the Exchange
route to Away Markets, to operate on a level playing field. The
Exchange's proposal is therefore designed to promote competition by
offering a choice of exchanges to those ETP Holders and issuers that
prefer to trade or list on an exchange that offers a delay mechanism.
Accordingly, the proposed rule change is designed to introduce
additional competition among exchanges so that broker dealers and
issuers have more than one option if seeking a trading venue that
offers an intentional delay mechanism.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
[[Page 10832]]
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please
include File Number SR-NYSEMKT-2017-05 on the subject line.
Paper Comments
Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2017-05. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (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
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEMKT-2017-05 and should
be submitted on or before March 8, 2017.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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\19\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-02994 Filed 2-14-17; 8:45 am]
BILLING CODE 8011-01-P