81 FR 13851 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending Rule 98 To Provide That When Designated Market Makers Enter Interest for the Purpose of Facilitating the Execution of Customer Orders, Such Orders Would Not Be Required To Be Designated as DMM Interest

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 50 (March 15, 2016)

Page Range		13851-13854
FR Document		2016-05753
Federal Register, Volume 81 Issue 50 (Tuesday, March 15, 2016)
[Federal Register Volume 81, Number 50 (Tuesday, March 15, 2016)]
[Notices]
[Pages 13851-13854]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-05753]



[[Page 13851]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77332; File No. SR-NYSE-2016-16]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change Amending Rule 98 To Provide 
That When Designated Market Makers Enter Interest for the Purpose of 
Facilitating the Execution of Customer Orders, Such Orders Would Not Be 
Required To Be Designated as DMM Interest

March 9, 2016.
    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 March 4, 2016, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II, below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 98 to provide that when 
Designated Market Makers (``DMM'') enter interest for the purpose of 
facilitating the execution of customer orders, such orders would not be 
required to be designated as DMM interest. 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.

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 Rule 98 to provide that when DMMs 
enter interest on a proprietary basis for the purpose of facilitating 
the execution of customer orders, such orders would not be required to 
be designated as DMM interest.\4\
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    \4\ As defined in Rule 2(i), the term ``DMM'' means an 
individual member, officer, partner, employee or associated person 
of a Designated Market Maker Unit who is approved by the Exchange to 
act in the capacity of a DMM.
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Background
    In 2014, the Exchange amended Rule 98 to adopt a principles-based 
approach to prohibit the misuse of material nonpublic information by a 
member organization that operates a DMM unit and make conforming 
changes to other Exchange rules.\5\ Those rule changes provide member 
organizations operating DMM units with the ability to integrate DMM 
unit trading with other trading units, while maintaining tailored 
restrictions to address that DMMs while on the Trading Floor may have 
access to certain Floor-based non-public information. By removing 
prescriptive restrictions, the 2014 Filing was designed to enable a 
member organization that engages in market-making operations on 
multiple exchanges to house its DMM operations together with the other 
market-making operations, even if such operations are customer-facing, 
or, to enable a member organization to consolidate all equity trading, 
including customer-facing operations and the DMM unit, within a single 
independent trading unit.
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    \5\ See Securities Exchange Act Release Nos. 72534 (July 3, 
2014), 79 FR 39019 (July 9, 2014) (Approval Order) and 71837 (April 
1, 2014), 79 FR 19146 (April 7, 2014) (``2014 Notice'') (SR-NYSE-
2014-12) (``2014 Filing'').
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    Rule 98(c) sets forth specified restrictions to operating a DMM 
unit.\6\ Among other requirements, Rule 98(c)(4) provides that any 
interest entered into Exchange systems by the DMM unit in DMM 
securities \7\ must be identifiable as DMM unit interest. Current Rule 
98(c)(4) was designed to ensure that all trading activity by a DMM unit 
in DMM securities at the Exchange is available for review. As discussed 
below, under Rule 98(c)(5), DMMs would continue to be required to 
submit information to the Exchange to make available to the Exchange 
for review all trading activity by a DMM unit in DMM securities. The 
Exchange did not specify which system(s) a DMM unit must use because, 
as the Exchange's trading systems continue to evolve, the manner by 
which interest would be identified as DMM interest could change. 
Accordingly, the current rule requires any trading for the account of 
the DMM unit in DMM securities at the Exchange to be identifiable as 
DMM interest.
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    \6\ As defined in Rule 98(b)(1), the term ``DMM unit'' means a 
trading unit within a member organization that is approved pursuant 
to Rule 103 to act as a DMM unit.
    \7\ As defined in Rule 98(b)(2), the term ``DMM securities'' 
means any securities allocated to the DMM unit pursuant to Rule 103B 
or other applicable rules.
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    Rule 98(c)(5) provides that a member organization must provide the 
Exchange with real-time net position information for trading in DMM 
securities by the DMM unit and any independent trading unit of which it 
is a part, at such times and in the manner prescribed by the Exchange. 
Rule 98(d) further specifies that the DMM rules \8\ will apply only to 
a DMM unit's quoting or trading in its DMM securities for its own 
accounts at the Exchange. Accordingly, the DMM rules do not apply to 
any customer orders that a member organization that operates a DMM unit 
sends to the Exchange as agent.\9\
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    \8\ As defined in Rule 98(b)(3), the term ``DMM rules'' means 
any rules that govern DMM or DMM unit conduct or trading.
    \9\ See 2014 Notice, supra note 5 at 19152 (specifying that Rule 
98(d) was added because DMM rules are not applicable to any customer 
orders routed to the Exchange by a member organization as agent).
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    Because Rule 98(c)(4) currently requires that any interest entered 
into Exchange systems by the DMM unit in DMM securities be identifiable 
as DMM interest, a DMM unit integrated with a customer-facing unit that 
would send customer orders in DMM securities to the Exchange as 
proprietary interest must identify it as DMM interest. As a result, 
although agency orders are not subject to DMM rules, customer-driven 
interest entered on a proprietary basis is subject to all DMM rules.
    To date, none of the member organizations operating a DMM have 
integrated a DMM unit with a customer-facing trading unit and the 
Exchange believes that the current rule requiring customer-driven 
orders that are represented on a proprietary basis be designated as DMM 
interest has served as a barrier to achieving such integration.\10\ 
Specifically, there are

[[Page 13852]]

certain scenarios when the rules governing DMMs may conflict with a 
member organization's obligations to its customers. For example, DMMs 
are not permitted to enter Market Orders, MOO Orders, CO Orders, MOC 
Order, LOC Orders, or orders with Sell ``Plus''--Buy ``Minus'' 
Instructions.\11\ But to meet customer instructions, a customer-driven 
order entered by a member organization on a proprietary basis may need 
to be one of these order types. As another example, DMMs are restricted 
from engaging in specified trading in the last ten minutes of trading 
before the close of trading.\12\ But a member organization may have a 
best execution obligation to route a customer-driven order to the 
Exchange in the last ten minutes of trading.
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    \10\ The Exchange understands it is a common practice among 
market makers that operate as wholesalers, and thus have their own 
customer orders as well as retail order flow from another broker 
dealer, to facilitate the execution of customer order flow by 
representing it on a proprietary basis when such orders are routed 
to an exchange. Once a customer-driven order that has been 
represented on a proprietary basis on an exchange has been executed, 
the market maker uses the position acquired on the Exchange to fill 
the customer order either on a riskless-principal basis or with 
price improvement to the customer.
    \11\ See Rule 104(b)(vi).
    \12\ See Rule 104(g)(i)(A)(III) (defining Prohibited 
Transactions). Specifically, a DMM with a long position in a 
security is prohibited from making a purchase in a security that 
results in a new high price on the Exchange for the day, and a DMM 
with a short position in a security is prohibited from making a sale 
in such security that results in a new low price for the day.
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Proposed Amendments
    The Exchange proposes to amend Rule 98 to better reflect how member 
organizations that integrate DMM unit operations with customer-facing 
operations may facilitate customer-driven order flow to the Exchange in 
DMM securities. As noted above, one of the intended goals of the 2014 
Filing was to permit member organizations to integrate DMM unit 
operations with other market-making operations, including customer-
facing units. However, as discussed above, subjecting customer order 
flow that is entered on a proprietary basis to DMM rules may be 
inconsistent with a member organization's obligations to its customers, 
and thus continue to serve as a barrier to integrating DMM units within 
a member organization. Accordingly, the Exchange proposes to amend Rule 
98 to facilitate better integration of DMM units with a member 
organization's existing customer-facing market-making trading units by 
specifying that, as with agency orders, customer-driven orders that are 
entered on a proprietary basis by the DMM unit would not be required to 
be designated as DMM interest.
    The Exchange proposes to amend Rule 98 to provide that proprietary 
interest that is entered by a DMM unit for the purposes of facilitating 
customer orders would not be required to be designated as DMM interest. 
The Exchange proposes to replace the phrase ``any interest'' with the 
phrase ``proprietary interest'' in Rule 98(c)(4) to clarify that the 
existing rule only governs proprietary interest of a DMM unit, i.e., 
interest for the account of the member organization. As further 
proposed, the Exchange would amend Rule 98(c)(4) to provide that if 
proprietary interest entered into Exchange systems by the DMM unit in 
DMM securities is for the purposes of facilitating the execution of an 
order from a customer (whether its own customer or the customer of 
another broker-dealer), such interest would not be required to be 
identifiable as DMM unit interest. The Exchange proposes to define such 
interest as a ``customer-driven order.''
    The proposed definition of ``customer-driven order'' is not a novel 
concept in that other SROs rules define the concept of a proprietary 
order being entered to facilitate a customer order. For example, 
Supplementary Material .03 to FINRA Rule 5320 defines the term 
``facilitated order'' to mean a proprietary trade that is for the 
purposes of facilitating the execution, on a riskless principal basis, 
of an order from a customer (whether its own customer or another 
broker-dealer).\13\ The Exchange proposes a distinction for the 
definition of ``customer-driven order'' in Rule 98 as compared to the 
Rule 5320 definition of ``facilitated order'' because as proposed, a 
customer-driven order would not be required to be entered on a riskless 
basis. Rather, the Exchange believes that any customer order that a 
member organization facilitates on a proprietary basis should be 
eligible for treatment under proposed Rule 98(c)(4).\14\
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    \13\ See also Supplementary Material .03 to NYSE Rule 5320.
    \14\ If a customer-driven order, as defined in Rule 98(c)(4), is 
not handled on a riskless principal basis, it would not be eligible 
for the riskless principal exception to the prohibition against 
trading ahead of customer orders as specified in Rule 5320.
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    The proposed rule change is designed to reflect how member 
organizations handle customer orders, which in many circumstances, are 
routed to an exchange on a proprietary basis to facilitate execution of 
a customer's order. Therefore, the Exchange believes that the proposed 
amendment is consistent with the current rule, which does not require 
agency orders entered by the member organization that operates a DMM 
unit to be subject to DMM rules.\15\
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    \15\ See supra note 9.
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    The Exchange further proposes to amend Rule 98(d) to specify which 
rules would be applicable to trading by the DMM unit. As proposed, the 
rules, fees, or credits applicable to DMM quoting or trading activity 
would apply only to a DMM unit's quoting or trading in its DMM 
securities for its own account at the Exchange that has been identified 
as DMM interest. In addition, consistent with the proposal that 
customer-driven orders would not be required to be designated as DMM 
interest, the Exchange proposes to add text to Rule 98(d) to state that 
customer-driven orders for the account of a DMM unit that have not been 
identified as DMM interest would not be subject to DMM rules or be 
eligible for any fees or credits applicable to DMM quoting or trading 
activity.\16\ In addition, such customer-driven orders could not be 
aggregated with interest that has been identified as DMM interest for 
purposes of any DMM-related fees or credits or DMM quoting obligations 
specified in Rule 104(a). This proposed rule text would provide that 
customer-driven orders not designated as DMM interest would not be 
subject to DMM rules, which, as described above, include restrictions 
on availability of certain order types and entry of specified orders 
during the last ten minutes of trading. Because a customer-driven order 
that has not been designated as DMM interest would not be subject to 
DMM rules, it would also not be eligible for a parity allocation 
applicable for DMMs pursuant to Rule 72(c) or be used to assist a DMM 
in meeting its quoting obligations, or be eligible for DMM fees or 
credits.
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    \16\ Rather, such customer-driven orders would be eligible for 
any fees or credits applicable to equity transactions at the 
Exchange that are not DMM or Floor broker trades. See NYSE Price 
List, available here: https://www.nyse.com/publicdocs/nyse/markets/nyse/NYSE_Price_List.pdf.
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    The Rule 98(c)(5) obligation to provide the Exchange with real-time 
net position information in DMM securities would continue to be 
applicable to the DMM unit's position in DMM securities together with 
any position of a Regulation SHO independent trading unit of which the 
DMM unit may be included, regardless of whether they are positions 
resulting from trades in away markets, trades as a result of DMM 
interest entered at the Exchange, or customer-driven orders routed to 
the Exchange that were not identified as DMM interest.\17\ For example, 
if a DMM

[[Page 13853]]

unit is combined with market-making desks that are trading on away 
markets and that route customer-driven orders to the Exchange in DMM 
securities that are not identified as DMM interest, the member 
organization would be required to report the position of the entire DMM 
unit in DMM securities, not only the DMM's Exchange-traded positions 
resulting from DMM interest. The Exchange also proposes a non-
substantive amendment to Rule 98(c)(5) to delete the term ``for 
trading,'' which the Exchange believes is extraneous rule text.
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    \17\ Under Regulation SHO, determination of a seller's net 
position is based on the seller's position in the security in all 
proprietary accounts. See Securities Exchange Act Release No. 50103 
(July 28, 2004), 69 FR 48008, 48010, n.22 (Aug. 6, 2004); see also 
Securities Exchange Act Release Not 48709 (Oct. 29, 2003), 68 FR 
62972, 62991 and 62994 (Nov. 6, 2003); Letter from Richard R. 
Lindsey, Director, Division of Market Regulation, to Roger D. Blanc, 
Wilkie Farr & Gallagher, SEC No-Action Letter, 1998 SEC No-Act. 
LEXIS 1038, p. 5 (Nov. 23, 1998); Securities Exchange Act Release 
No. 30772 (June 3, 1992), 57 FR 24415, 24419 n.47 (June 9, 1992); 
Securities Exchange Act Release No. 27938 (Apr. 23, 1990), 55 FR 
17949, 17950 (Apr. 30, 1990).
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2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \18\ that an Exchange have rules that 
are designed to promote the just and equitable principles of trade, to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system and, in general, to protect 
investors and the public interest. The Exchange believes that the 
proposed rule change would remove impediments to and perfect the 
mechanism of a free and open market by providing greater specificity in 
Rule 98 regarding which proprietary interest would be required to be 
entered as DMM interest.
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    \18\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendment to define the 
term ``customer-driven order'' to be proprietary interest of a DMM that 
is for the purposes of facilitating the execution of an order from a 
customer (whether its own customer or the customer of another broker-
dealer) reflects the current reality of how broker-dealers facilitate 
customer orders that are routed to an exchange. Specifically, such 
customer orders are routed to an exchange on a proprietary basis, and 
once an execution is received from an exchange, the execution is 
provided to the customer either on a riskless principal basis or with 
price improvement. Facilitating customer orders on a proprietary basis 
is not a novel concept and serves as the basis of the definition of the 
term ``facilitated order'' in Supplementary Material .03 to FINRA Rule 
5320. While the Exchange proposes that customer-driven orders for the 
purposes of Rule 98 would not be required to be executed on a riskless 
principal basis, this difference does not alter the premise of how 
member organizations facilitate customer orders, as already established 
in Rule 5320.03. Because the proposed definition reflects how customer 
orders are facilitated on a proprietary basis when routed to an 
exchange, the Exchange believes that the proposed amendment to Rule 
98(c)(4) to define the term ``customer-driven order'' would remove 
impediments to and perfect the mechanism of a free and open market.
    The Exchange further believes that providing DMM units with a 
choice of whether to designate a customer-driven order as DMM interest 
would remove impediments to and perfect the mechanism of a free and 
open market because certain DMM rules may conflict with a broker-
dealer's obligation to its customers. As discussed in the 2014 Filing, 
agency orders entered by a member organization that operates a DMM unit 
are not subject to DMM rules.\19\ Yet, if that same customer order were 
routed to the Exchange on a proprietary basis, which is the manner by 
which broker-dealers may handle customer order flow, it would be 
subject to DMM rules. Accordingly, because Rule 98 does not currently 
require agency flow to be subject to DMM rules, the Exchange believes 
it is consistent with the protection of investors and the public 
interest that agency flow that is facilitated by a member organization 
on a proprietary basis at the Exchange would similarly not be required 
to be subject to DMM rules.
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    \19\ See supra note 9.
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    The proposed rule change would further be consistent with the 
protection of investors and the public interest because it would enable 
customer-driven orders to not be subject to DMM rules and eliminate any 
conflict with customer instructions or best execution obligations.
    The Exchange further believes that the proposed amendments to Rule 
98(d) would remove impediments to and perfect the mechanism of a free 
and open market by promoting transparency in Exchange rules regarding 
which rules, fees or credits applicable to DMM quoting or trading 
activity would be applicable to which interest. More specifically, the 
Exchange believes that it would remove impediments to and perfect the 
mechanism of a free and open market to provide specificity in Exchange 
rules that customer-driven orders that have not been designated as DMM 
interest would not be subject to the DMM rules and also would not be 
eligible for DMM fees or credits or to be aggregated with DMM interest 
for purposes of any DMM-related fees or credits or DMM quoting 
obligations.
    Finally, the Exchange believes that the proposed amendment to Rule 
98(c)(5) would remove impediments to and perfect the mechanism of a 
free and open market by removing extraneous rule text, thus promoting 
simplicity in Exchange rules.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The proposed rule change is 
designed to be pro-competitive because it would remove a restriction 
unique to DMMs as specified in Rule 98, thus enabling existing 
customer-facing market making units to operate as a DMM unit at the 
Exchange without needing to change the manner by which they may 
facilitate customer orders on a proprietary basis at an exchange.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The Exchange respectfully requests accelerated effectiveness of 
this proposed rule change pursuant to Section 19(b)(2) of the Act.\20\ 
The Exchange believes that there is good cause for the Commission to 
accelerate effectiveness because the proposed rule change is consistent 
with the goal of the 2014 Filing to exclude agency orders entered by a 
member organization that operates a DMM unit from being subject to DMM 
rules. The proposed rule change is designed to reflect how member 
organizations represent agency orders and narrowly defines a class of 
proprietary interest that is entered to facilitate customer orders from 
being required to be subject to DMM rules. Moreover, the proposed 
definition of ``customer-driven order'' is not novel, as is it based on 
the existing definition of ``facilitated order'' set forth in 
Supplementary Material .03 to Rule 5320 and Supplementary Material .03 
to FINRA Rule 5320, which already describe how proprietary orders can 
be entered to facilitate a customer order.

[[Page 13854]]

The Exchange believes that difference between the proposed Rule 98 
definition of ``customer-driven order'' and the Rule 5320 definition of 
``facilitated order'' is not material because, if a ``customer-driven 
order'' under Rule 98 is not executed on a riskless principal basis, it 
would still be subject to the requirements of Rule 5320 and would not 
be eligible for the riskless principal exception.
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    \20\ 15 U.S.C. 78s(b)(2).
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    The Exchange further believes that providing DMMs with the choice 
of whether to designate customer-driven orders as DMM interest would 
permit member organizations operating DMM units to facilitate customer-
based order flow at the Exchange without such orders being restricted 
by DMM obligations, which may be contrary to customer instructions or 
best execution obligations. The Exchange further believes that the 
proposed rule change would apply DMM rules fairly because customer-
driven orders not designated as DMM interest, would not be subject to 
the obligations, nor be eligible for the benefits, applicable to DMM 
interest.
    Finally, the Exchange believes there is good cause to accelerate 
effectiveness of this proposed rule change because it would promote 
competition on the Exchange. As has been previously announced, 
additional member organizations are seeking to become approved as 
DMMs.\21\ The proposed rule change would facilitate the transition of 
DMM responsibilities to new entrants that engage in customer-facing 
market making, thereby promoting competition among member organizations 
seeking to be approved as a DMM on the Exchange.
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    \21\ See ``Citadel Securities to become #1 Designated Market 
Maker on NYSE,'' available at http://www.citadelsecurities.com/news/citadel-securities-become-1-designated-market-maker-nyse/ nyse/; and 
``GTS to become Designated Market Maker on the New York Stock 
Exchange,'' available at http://gtsx.com/in-the-news/details/gts-to-become-designated-market-maker-on-the-new-york-stock-exchange.
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    Within 45 days of the date of publication of this notice in the 
Federal Register or within 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 Exchange consents, the Commission will:

A. by order approve or disapprove such proposed rule change, or

B. institute proceedings to determine whether the proposed rule change 
should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSE-2016-16 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2016-16. 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 (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 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-NYSE-2016-16 and should be 
submitted on or before April 5, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-05753 Filed 3-14-16; 8:45 am]
 BILLING CODE 8011-01-P
Federal Register / Vol. 81, No. 50 / Tuesday, March 15, 2016 / Notices 13851

SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s discussed below, under Rule 98(c)(5),
COMMISSION Statement of the Purpose of, and the DMMs would continue to be required to
Statutory Basis for, the Proposed Rule submit information to the Exchange to
[Release No. 34–77332; File No. SR–NYSE– Change make available to the Exchange for
2016–16]
1. Purpose review all trading activity by a DMM
unit in DMM securities. The Exchange
Self-Regulatory Organizations; New The Exchange proposes to amend did not specify which system(s) a DMM
York Stock Exchange LLC; Notice of Rule 98 to provide that when DMMs unit must use because, as the
Filing of Proposed Rule Change enter interest on a proprietary basis for Exchange’s trading systems continue to
Amending Rule 98 To Provide That the purpose of facilitating the execution evolve, the manner by which interest
When Designated Market Makers Enter of customer orders, such orders would would be identified as DMM interest
Interest for the Purpose of Facilitating not be required to be designated as could change. Accordingly, the current
the Execution of Customer Orders, DMM interest.4 rule requires any trading for the account
Such Orders Would Not Be Required Background of the DMM unit in DMM securities at
To Be Designated as DMM Interest the Exchange to be identifiable as DMM
In 2014, the Exchange amended Rule
March 9, 2016.
interest.
98 to adopt a principles-based approach
Rule 98(c)(5) provides that a member
Pursuant to Section 19(b)(1) 1 of the to prohibit the misuse of material
organization must provide the Exchange
Securities Exchange Act of 1934 (the nonpublic information by a member
with real-time net position information
‘‘Act’’) 2 and Rule 19b–4 thereunder,3 organization that operates a DMM unit
for trading in DMM securities by the
notice is hereby given that, on March 4, and make conforming changes to other
DMM unit and any independent trading
2016, New York Stock Exchange LLC Exchange rules.5 Those rule changes
unit of which it is a part, at such times
(‘‘NYSE’’ or the ‘‘Exchange’’) filed with provide member organizations operating
and in the manner prescribed by the
the Securities and Exchange DMM units with the ability to integrate
Exchange. Rule 98(d) further specifies
Commission (the ‘‘Commission’’) the DMM unit trading with other trading
that the DMM rules 8 will apply only to
proposed rule change as described in units, while maintaining tailored
a DMM unit’s quoting or trading in its
Items I and II, below, which Items have restrictions to address that DMMs while
DMM securities for its own accounts at
been prepared by the self-regulatory on the Trading Floor may have access to
the Exchange. Accordingly, the DMM
organization. The Commission is certain Floor-based non-public
rules do not apply to any customer
publishing this notice to solicit information. By removing prescriptive
orders that a member organization that
comments on the proposed rule change restrictions, the 2014 Filing was
operates a DMM unit sends to the
from interested persons. designed to enable a member
Exchange as agent.9
organization that engages in market-
I. Self-Regulatory Organization’s Because Rule 98(c)(4) currently
making operations on multiple
Statement of the Terms of Substance of requires that any interest entered into
exchanges to house its DMM operations
the Proposed Rule Change Exchange systems by the DMM unit in
together with the other market-making
DMM securities be identifiable as DMM
The Exchange proposes to amend operations, even if such operations are
interest, a DMM unit integrated with a
Rule 98 to provide that when customer-facing, or, to enable a member
customer-facing unit that would send
Designated Market Makers (‘‘DMM’’) organization to consolidate all equity
customer orders in DMM securities to
enter interest for the purpose of trading, including customer-facing
the Exchange as proprietary interest
facilitating the execution of customer operations and the DMM unit, within a
must identify it as DMM interest. As a
orders, such orders would not be single independent trading unit.
Rule 98(c) sets forth specified result, although agency orders are not
required to be designated as DMM
restrictions to operating a DMM unit.6 subject to DMM rules, customer-driven
interest. The proposed rule change is
Among other requirements, Rule interest entered on a proprietary basis is
available on the Exchange’s Web site at
98(c)(4) provides that any interest subject to all DMM rules.
www.nyse.com, at the principal office of
To date, none of the member
the Exchange, and at the Commission’s entered into Exchange systems by the
organizations operating a DMM have
Public Reference Room. DMM unit in DMM securities 7 must be
integrated a DMM unit with a customer-
identifiable as DMM unit interest.
II. Self-Regulatory Organization’s facing trading unit and the Exchange
Current Rule 98(c)(4) was designed to
Statement of the Purpose of, and believes that the current rule requiring
ensure that all trading activity by a
Statutory Basis for, the Proposed Rule customer-driven orders that are
DMM unit in DMM securities at the
Change represented on a proprietary basis be
Exchange is available for review. As
In its filing with the Commission, the designated as DMM interest has served
self-regulatory organization included 4 As defined in Rule 2(i), the term ‘‘DMM’’ means as a barrier to achieving such
statements concerning the purpose of, an individual member, officer, partner, employee or integration.10 Specifically, there are
associated person of a Designated Market Maker
and basis for, the proposed rule change Unit who is approved by the Exchange to act in the 8 As defined in Rule 98(b)(3), the term ‘‘DMM
and discussed any comments it received capacity of a DMM. rules’’ means any rules that govern DMM or DMM
on the proposed rule change. The text 5 See Securities Exchange Act Release Nos. 72534 unit conduct or trading.
of those statements may be examined at (July 3, 2014), 79 FR 39019 (July 9, 2014) (Approval 9 See 2014 Notice, supra note 5 at 19152
Order) and 71837 (April 1, 2014), 79 FR 19146 (specifying that Rule 98(d) was added because
asabaliauskas on DSK3SPTVN1PROD with NOTICES

the places specified in Item IV below.
(April 7, 2014) (‘‘2014 Notice’’) (SR–NYSE–2014– DMM rules are not applicable to any customer
The Exchange has prepared summaries, 12) (‘‘2014 Filing’’). orders routed to the Exchange by a member
set forth in sections A, B, and C below, 6 As defined in Rule 98(b)(1), the term ‘‘DMM organization as agent).
of the most significant parts of such unit’’ means a trading unit within a member 10 The Exchange understands it is a common

statements. organization that is approved pursuant to Rule 103 practice among market makers that operate as
to act as a DMM unit. wholesalers, and thus have their own customer
7 As defined in Rule 98(b)(2), the term ‘‘DMM orders as well as retail order flow from another
1 15 U.S.C. 78s(b)(1). securities’’ means any securities allocated to the broker dealer, to facilitate the execution of customer
2 15 U.S.C. 78a. DMM unit pursuant to Rule 103B or other order flow by representing it on a proprietary basis
3 17 CFR 240.19b–4. applicable rules. Continued

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Federal Register / Vol. 81, No. 50 / Tuesday, March 15, 2016 / Notices 13853

unit is combined with market-making be required to be executed on a riskless aggregated with DMM interest for
desks that are trading on away markets principal basis, this difference does not purposes of any DMM-related fees or
and that route customer-driven orders to alter the premise of how member credits or DMM quoting obligations.
the Exchange in DMM securities that are organizations facilitate customer orders, Finally, the Exchange believes that
not identified as DMM interest, the as already established in Rule 5320.03. the proposed amendment to Rule
member organization would be required Because the proposed definition reflects 98(c)(5) would remove impediments to
to report the position of the entire DMM how customer orders are facilitated on and perfect the mechanism of a free and
unit in DMM securities, not only the a proprietary basis when routed to an open market by removing extraneous
DMM’s Exchange-traded positions exchange, the Exchange believes that rule text, thus promoting simplicity in
resulting from DMM interest. The the proposed amendment to Rule Exchange rules.
Exchange also proposes a non- 98(c)(4) to define the term ‘‘customer- B. Self-Regulatory Organization’s
substantive amendment to Rule 98(c)(5) driven order’’ would remove Statement on Burden on Competition
to delete the term ‘‘for trading,’’ which impediments to and perfect the
the Exchange believes is extraneous rule mechanism of a free and open market. The Exchange does not believe that
text. The Exchange further believes that the proposed rule change will impose
providing DMM units with a choice of any burden on competition that is not
2. Statutory Basis whether to designate a customer-driven necessary or appropriate in furtherance
The basis under the Act for this order as DMM interest would remove of the purposes of the Act. The
proposed rule change is the requirement impediments to and perfect the proposed rule change is designed to be
under Section 6(b)(5) 18 that an mechanism of a free and open market pro-competitive because it would
Exchange have rules that are designed to because certain DMM rules may conflict remove a restriction unique to DMMs as
promote the just and equitable with a broker-dealer’s obligation to its specified in Rule 98, thus enabling
principles of trade, to remove customers. As discussed in the 2014 existing customer-facing market making
impediments to and perfect the Filing, agency orders entered by a units to operate as a DMM unit at the
mechanism of a free and open market member organization that operates a Exchange without needing to change the
and a national market system and, in DMM unit are not subject to DMM manner by which they may facilitate
general, to protect investors and the rules.19 Yet, if that same customer order customer orders on a proprietary basis
public interest. The Exchange believes were routed to the Exchange on a at an exchange.
that the proposed rule change would proprietary basis, which is the manner
C. Self-Regulatory Organization’s
remove impediments to and perfect the by which broker-dealers may handle
Statement on Comments on the
mechanism of a free and open market by customer order flow, it would be subject
Proposed Rule Change Received From
providing greater specificity in Rule 98 to DMM rules. Accordingly, because
Members, Participants, or Others
regarding which proprietary interest Rule 98 does not currently require
would be required to be entered as agency flow to be subject to DMM rules, No written comments were solicited
DMM interest. the Exchange believes it is consistent or received with respect to the proposed
The Exchange believes that the with the protection of investors and the rule change.
proposed amendment to define the term public interest that agency flow that is III. Date of Effectiveness of the
‘‘customer-driven order’’ to be facilitated by a member organization on Proposed Rule Change and Timing for
proprietary interest of a DMM that is for a proprietary basis at the Exchange Commission Action
the purposes of facilitating the would similarly not be required to be
subject to DMM rules. The Exchange respectfully requests
execution of an order from a customer
The proposed rule change would accelerated effectiveness of this
(whether its own customer or the
further be consistent with the protection proposed rule change pursuant to
customer of another broker-dealer)
of investors and the public interest Section 19(b)(2) of the Act.20 The
reflects the current reality of how
because it would enable customer- Exchange believes that there is good
broker-dealers facilitate customer orders
driven orders to not be subject to DMM cause for the Commission to accelerate
that are routed to an exchange.
rules and eliminate any conflict with effectiveness because the proposed rule
Specifically, such customer orders are
customer instructions or best execution change is consistent with the goal of the
routed to an exchange on a proprietary
obligations. 2014 Filing to exclude agency orders
basis, and once an execution is received
The Exchange further believes that the entered by a member organization that
from an exchange, the execution is
proposed amendments to Rule 98(d) operates a DMM unit from being subject
provided to the customer either on a
would remove impediments to and to DMM rules. The proposed rule
riskless principal basis or with price
perfect the mechanism of a free and change is designed to reflect how
improvement. Facilitating customer
open market by promoting transparency member organizations represent agency
orders on a proprietary basis is not a
in Exchange rules regarding which orders and narrowly defines a class of
novel concept and serves as the basis of
rules, fees or credits applicable to DMM proprietary interest that is entered to
the definition of the term ‘‘facilitated
quoting or trading activity would be facilitate customer orders from being
order’’ in Supplementary Material .03 to
applicable to which interest. More required to be subject to DMM rules.
FINRA Rule 5320. While the Exchange
specifically, the Exchange believes that Moreover, the proposed definition of
proposes that customer-driven orders
it would remove impediments to and ‘‘customer-driven order’’ is not novel, as
for the purposes of Rule 98 would not
perfect the mechanism of a free and is it based on the existing definition of
asabaliauskas on DSK3SPTVN1PROD with NOTICES

(Nov. 6, 2003); Letter from Richard R. Lindsey,
open market to provide specificity in ‘‘facilitated order’’ set forth in
Director, Division of Market Regulation, to Roger D. Exchange rules that customer-driven Supplementary Material .03 to Rule
Blanc, Wilkie Farr & Gallagher, SEC No-Action orders that have not been designated as 5320 and Supplementary Material .03 to
Letter, 1998 SEC No-Act. LEXIS 1038, p. 5 (Nov. 23, DMM interest would not be subject to FINRA Rule 5320, which already
1998); Securities Exchange Act Release No. 30772
(June 3, 1992), 57 FR 24415, 24419 n.47 (June 9,
the DMM rules and also would not be describe how proprietary orders can be
1992); Securities Exchange Act Release No. 27938 eligible for DMM fees or credits or to be entered to facilitate a customer order.
(Apr. 23, 1990), 55 FR 17949, 17950 (Apr. 30, 1990).
18 15 U.S.C. 78f(b)(5). 19 See supra note 9. 20 15 U.S.C. 78s(b)(2).

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13854 Federal Register / Vol. 81, No. 50 / Tuesday, March 15, 2016 / Notices

The Exchange believes that difference A. by order approve or disapprove such For the Commission, by the Division of
between the proposed Rule 98 proposed rule change, or Trading and Markets, pursuant to delegated
definition of ‘‘customer-driven order’’ authority.22
B. institute proceedings to determine Robert W. Errett,
and the Rule 5320 definition of whether the proposed rule change
‘‘facilitated order’’ is not material Deputy Secretary.
should be disapproved.
because, if a ‘‘customer-driven order’’ [FR Doc. 2016–05753 Filed 3–14–16; 8:45 am]
under Rule 98 is not executed on a IV. Solicitation of Comments BILLING CODE 8011–01–P
riskless principal basis, it would still be Interested persons are invited to
subject to the requirements of Rule 5320 submit written data, views, and
and would not be eligible for the SECURITIES AND EXCHANGE
arguments concerning the foregoing,
COMMISSION
riskless principal exception. including whether the proposed rule
The Exchange further believes that change is consistent with the Act. [Release No. 34–77333; File No. SR–BATS–
providing DMMs with the choice of Comments may be submitted by any of 2016–02]
whether to designate customer-driven the following methods:
Self-Regulatory Organizations; BATS
orders as DMM interest would permit Electronic Comments Exchange, Inc.; Notice of Designation
member organizations operating DMM of a Longer Period for Commission
units to facilitate customer-based order • Use the Commission’s Internet
comment form (http://www.sec.gov/ Action on Proposed Rule Change to
flow at the Exchange without such Rule 14.11(i), Managed Fund Shares,
rules/sro.shtml); or
orders being restricted by DMM To List and Trade Shares of the
obligations, which may be contrary to • Send an email to rule-comments@
iShares iBonds Dec 2023 AMT-Free
sec.gov. Please include File Number SR–
customer instructions or best execution Muni Bond ETF, iShares iBonds Dec
NYSE–2016–16 on the subject line.
obligations. The Exchange further 2024 AMT-Free Muni Bond ETF,
believes that the proposed rule change Paper Comments iShares iBonds Dec 2025 AMT-Free
would apply DMM rules fairly because Muni Bond ETF, and iShares iBonds
• Send paper comments in triplicate
customer-driven orders not designated Dec 2026 AMT-Free Muni Bond ETF of
to Secretary, Securities and Exchange
as DMM interest, would not be subject the iShares U.S. ETF Trust
Commission, 100 F Street NE.,
to the obligations, nor be eligible for the Washington, DC 20549–1090. March 9, 2016.
benefits, applicable to DMM interest.
All submissions should refer to File On January 12, 2016, BATS Exchange,
Finally, the Exchange believes there is Number SR–NYSE–2016–16. This file Inc. (‘‘Exchange’’) filed with the
good cause to accelerate effectiveness of number should be included on the Securities and Exchange Commission
this proposed rule change because it subject line if email is used. To help the (‘‘Commission’’), pursuant to Section
would promote competition on the Commission process and review your 19(b)(1) of the Securities Exchange Act
Exchange. As has been previously comments more efficiently, please use of 1934 (‘‘Act’’) 1 and Rule 19b–4
announced, additional member only one method. The Commission will thereunder,2 a proposed rule change to
organizations are seeking to become post all comments on the Commission’s list and trade shares of the iShares
approved as DMMs.21 The proposed Internet Web site (http://www.sec.gov/ iBonds Dec 2023 AMT-Free Muni Bond
rule change would facilitate the rules/sro.shtml). Copies of the ETF, iShares iBonds Dec 2024 AMT-
transition of DMM responsibilities to submission, all subsequent Free Muni Bond ETF, iShares iBonds
new entrants that engage in customer- amendments, all written statements Dec 2025 AMT-Free Muni Bond ETF,
facing market making, thereby with respect to the proposed rule and iShares iBonds Dec 2026 AMT-Free
promoting competition among member change that are filed with the Muni Bond ETF of the iShares U.S. ETF
organizations seeking to be approved as Commission, and all written Trust under BATS Rule 14.11(i). The
a DMM on the Exchange. communications relating to the proposed rule change was published for
proposed rule change between the comment in the Federal Register on
Within 45 days of the date of Commission and any person, other than January 27, 2016.3 The Commission has
publication of this notice in the Federal those that may be withheld from the not received any comments on the
Register or within such longer period public in accordance with the proposal.
up to 90 days (i) as the Commission may provisions of 5 U.S.C. 552, will be Section 19(b)(2) of the Act 4 provides
designate if it finds such longer period available for Web site viewing and that within 45 days of the publication of
to be appropriate and publishes its printing in the Commission’s Public notice of the filing of a proposed rule
reasons for so finding or (ii) as to which Reference Room, 100 F Street NE., change, or within such longer period up
the Exchange consents, the Commission Washington, DC 20549 on official to 90 days as the Commission may
will: business days between the hours of designate if it finds such longer period
10:00 a.m. and 3:00 p.m. Copies of the to be appropriate and publishes its
filing also will be available for reasons for so finding, or as to which the
inspection and copying at the principal self-regulatory organization consents,
office of the Exchange. All comments the Commission shall either approve the
received will be posted without change; proposed rule change, disapprove the
asabaliauskas on DSK3SPTVN1PROD with NOTICES

21 See ‘‘Citadel Securities to become #1 the Commission does not edit personal proposed rule change, or institute
Designated Market Maker on NYSE,’’ available at identifying information from proceedings to determine whether the
http://www.citadelsecurities.com/news/citadel- submissions. You should submit only
securities-become-1-designated-market-maker- information that you wish to make 22 17 CFR 200.30–3(a)(12).
nyse/; and ‘‘GTS to become Designated Market available publicly. All submissions
1 15 U.S.C. 78s(b)(1).
Maker on the New York Stock Exchange,’’ available 2 17 CFR 240.19b–4.

at http://gtsx.com/in-the-news/details/gts-to-
should refer to File Number SR–NYSE– 3 See Securities Exchange Act Release No. 76954

become-designated-market-maker-on-the-new-york- 2016–16 and should be submitted on or (Jan. 21, 2016), 81 FR 4695.
stock-exchange. before April 5, 2016. 4 15 U.S.C. 78s(b)(2).

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Document Created: 2016-03-15 04:07:08
Document Modified: 2016-03-15 04:07:08
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		81 FR 13851