January 6, 2015.
Pursuant to Section 19(b)(1) 
of the Securities Exchange Act of 1934 (the “Act”) 
and Rule 19b-4 thereunder,
notice is hereby given that, on December 22, 2014, NYSE Arca, Inc. (the “Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I, II, and III 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 its Schedule of Fees and Charges for Exchange Services (“Fee Schedule”) to eliminate transaction fees for Midpoint Passive Liquidity (“MPL”) orders that remove liquidity from the Exchange and that are designated as “retail” but which are not executed in the Retail Liquidity Program. The Exchange proposes to implement the fee change effective January 2, 2015. The text of 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
The Exchange proposes to amend its Fee Schedule to eliminate transaction fees for MPL orders that remove liquidity from the Exchange and that are designated as “retail” orders, but which are not executed in the Retail Liquidity Program. The Exchange proposes to implement the fee change effective January 2, 2015.
For securities priced $1.00 or greater, the Exchange currently charges qualifying ETP Holders and Market Makers in Tier 1 
and Tier 2 
a fee of $0.0030 per share for MPL orders 
in Tape A, B and C securities that remove liquidity from the NYSE Arca Book. Similarly, the current basic rate, which is applicable when tier rates do not apply, is $0.0030 per share for MPL orders in Tape A, B and C securities that remove liquidity from the NYSE Arca Book. The Exchange proposes to eliminate the fee for MPL orders that Start Printed Page 1547remove liquidity from the NYSE Arca Book that are designated as retail orders and that meet the requirements of Rule 7.44(a)(3), but which are not executed in the Retail Liquidity Program 
To be eligible to for the proposed pricing for MPL orders, an MPL order would need to meet the requirements of Rule 7.44(a)(3). Rule 7.44(a)(3) defines a retail order as an agency order or a riskless principal order that meets the criteria of Financial Industry Regulatory Authority, Inc. Rule 5320.03 that originates from a natural person and is submitted to the Exchange by a Retail Member Organization (“RMO”),
provided that no change is made to the terms of the order with respect to price or side of market and the order does not originate from a trading algorithm or any other computerized methodology. An ETP Holder may designate an order a Retail Order either (1) by designating certain order entry ports at the Exchange as “Retail Order Ports” and attesting, in a form and/or manner prescribed by the Exchange, that all orders submitted to the Exchange via such Retail Order Ports are Retail Orders; or (2) by means of a specific tag in the order entry message.
The Exchange proposes to define the term “Retail Orders” separately in the Fee Schedule to distinguish the pricing applicable to orders designated as retail that are eligible for this proposed change, the existing Retail Order Tier and the existing Retail Orders that provide liquidity to the Book from the pricing applicable to executions of orders designated as retail in the Retail Liquidity Program, which are referred to in the Fee Schedule as “RMO Retail Orders” and are covered in the section of the Fee Schedule entitled “Fees and Credits Applicable to Executions in the Retail Liquidity Program.” As noted above, the Exchange proposes to define the term “Retail Order” in an earlier point of the Fee Schedule, thereby obviating the second definition currently in the Retail Order Tier section of the Fee Schedule. Accordingly, Exchange proposes to delete the phrase “as defined in Rule 7.44(a)(3)” in the Retail Order Tier.
The Exchange proposes to retain the fees for MPL orders that remove liquidity from the Exchange but that are not designated as Retail Orders at the current rates. The proposed amended Fee Schedule would distinguish between MPL orders that remove liquidity and that are designated Retail Orders, which would not be charged a fee, from MPL orders that remove liquidity and that are not designated Retail Orders, and which would continue to be charged the existing fee for MPL Orders that take liquidity.
The Exchange also proposes to add explanatory material to footnote 2 of the Fee Schedule that orders with specific rates (e.g., MPL, Tracking Orders, Passive Liquidity Orders, Retail Orders that provide liquidity to the Book, Retail Price Improvement Orders, and RMO Retail Orders) may be used to qualify for volume thresholds but are not eligible for tiered rates.
The proposed change is not otherwise intended to address any other issues, and the Exchange is not aware of any problems ETP Holders would have in complying with the proposed change.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,
in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers.
The Exchange believes that removing a fee for MPL orders that remove liquidity from the Exchange and that are designated Retail Orders is reasonable because it will encourage the submission of orders that meet the requirements to be designated as “retail” to the Exchange, thus enhancing order execution opportunities for all participants, but specifically retail investors. Moreover, the Exchange believes that markets and price discovery optimally function through the interactions of diverse flow types, and also believes that growth in internalization has required differentiation of retail order flow from other order flow types. As the Exchange has previously noted, a significant percentage of the orders of individual investors are executed over-the-counter.
The Exchange accordingly further believes that the proposed change is reasonable because it would contribute to maintaining or increasing the proportion of retail flow in Exchange-listed securities that are executed on a registered national securities exchange, rather than executing in off-exchange venues. The Exchange further believes that defining the term “Retail Orders” separately from the term “RMO Retail Orders” would provide transparency in the Fee Schedule concerning which pricing is applicable to which orders designated as retail, and specifically, that the proposed pricing change for MPL orders is only applicable to orders designated as “retail” that are not executed as part of the Retail Liquidity Program.
Finally, the Exchange notes that while the proposed price change would treat retail order flow differently from order flow submitted by other market participants, such segmentation would not be inconsistent with Section 6(b)(5) of the Act,
which requires that the Start Printed Page 1548rules of an exchange are not designed to permit unfair discrimination. The Commission has previously recognized that the markets generally distinguish between retail investors, whose orders are considered desirable by liquidity providers because such retail investors are presumed on average to be less informed about short-term price movements, and professional traders, whose orders are presumed on average to be more informed.
The Commission has further recognized that, because of this distinction, liquidity providers are generally inclined to offer price improvement to less informed retail orders than to more informed professional orders.
The Exchange believes that the differentiation proposed herein is not designed to permit unfair discrimination, but instead is reasonably designed to attract retail flow to the Exchange, while helping to ensure that retail investors benefit from the better price that liquidity providers are willing to give their orders. The Exchange believes that the proposed increase of retail order flow to the Exchange might also create a desirable opportunity for institutional investors to interact with retail order flow that they are not able to reach currently. The Exchange therefore believes that the proposed change would further promote a competitive process around retail executions such that retail investors would receive better prices than they currently do through bilateral internalization arrangements. The Exchange believes that the transparency and competitiveness of the proposed rule change on an exchange market would result in better prices for retail investors.
The proposed change is also equitable and not unfairly discriminatory because it would contribute to investors' confidence in the fairness of their transactions and because it would benefit all investors by increasing the liquidity pool and potential for price-improving executions at the Exchange.
The proposed change is also equitable and not unfairly discriminatory because the ability to designate MPL orders as Retail Orders is available equally to all similarly situated ETP Holders that submit qualifying orders and satisfy the other related, existing requirements.
The Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act,
the Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, the Exchange believes that the proposed change would increase competition among execution venues and encourage additional execution opportunities on the Exchange. For the same reasons, the proposed change also would not impose any burden on competition among market participants. The Exchange believes that while it is the first to offer designated Retail Orders the ability to take at the mid-point for free through MPL orders, providing significant price improvement, the proposed change also permits the Exchange to compete with other markets, including NASDAQ, which does not charge but provides a credit for designated Retail Orders that take liquidity in Retail Liquidity Provider programs,
as well as over-the-counter trading that offers mid-point executions at low fees.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of ETP Holders or competing order execution venues to maintain their competitive standing in the financial markets.
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 foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A) 
of the Act and subparagraph (f)(2) of Rule 19b-4 
thereunder, because it establishes a due, fee, or other charge imposed by the Exchange.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) 
of the Act to determine whether the proposed rule change should be approved or 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:
Start Printed Page 1549
- 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-NYSEARCA-2014-142. 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 Section, 100 F Street NE., Washington, DC 20549-1090, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing will also be available for inspection and copying at the NYSE's principal office and on its Internet Web site at www.nyse.com. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEARCA-2014-142 and should be submitted on or before February 2, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Brent J. Fields,
[FR Doc. 2015-00211 Filed 1-9-15; 8:45 am]
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