[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Notices]
[Pages 61802-61806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25137]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63023; File No. SR-Phlx-2010-125]
Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Regarding
Clearly Erroneous Transactions
September 30, 2010.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 22, 2010, NASDAQ OMX PHLX LLC (``PHLX'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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[[Page 61803]]
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend PHLX Rule 3312, governing clearly
erroneous executions on the NASDAQ OMX PSX system (``PSX''). The text
of the proposed rule change is available from the Exchange's Web site
at http://nasdaqomxphlx.cchwallstreet.com, at the Exchange's principal
office, at the Commission's Web site at http://www.sec.gov, 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 Exchange included statements
concerning the purpose of, and basis for, the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below, and is set forth in Sections A, B, and C below.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange is proposing modifications to its Rule 3312, entitled
Clearly Erroneous Transactions. Rule 3312 was recently approved by the
Commission in connection with a proposal to resume trading of NMS
stocks through the Exchange's PSX system.\3\ The proposed changes are
designed to conform Rule 3312 to changes that were recently approved to
the corresponding rules of The NASDAQ Stock Market (the ``NASDAQ
Exchange'') and NASDAQ OMX BX (``BX''), and other exchanges.\4\ First,
the Exchange proposes replacing existing paragraph (a)(2)(C)(ii) of
Rule 3312, entitled ``Unusual Circumstances and Joint Market Rulings''
with a new paragraph, entitled ``Multi-Stock Events Involving Twenty or
More Securities.'' Second, the Exchange is replacing existing paragraph
(a)(2)(C)(iv) of Rule 3312, entitled ``Numerical Guidelines Applicable
to Volatile Market Opens'' with a new paragraph, entitled ``Individual
Stock Trading Pauses.'' Third, the Exchange is proposing changes to
existing paragraph (b) of Rule 3312 to eliminate the ability of the
Exchange to deviate from the Numerical Guidelines contained in
paragraph (a)(2)(C)(i) when deciding which transactions will be
reviewed by the Exchange as potentially clearly erroneous. Fourth, the
Exchange proposes modifications to paragraphs (a)(2)(C)(i) and (iii) of
Rule 3312 consistent with the proposed changes to paragraphs
(a)(2)(C)(ii) and (iv). Finally, the Exchange proposes amending
paragraph (c)(1), related to appeals of clearly erroneous execution
decisions by the Exchange, to preserve non-appealability of all joint
rulings between the Exchange and one or more other market centers.\5\
As proposed, the provisions of paragraph (a)(2)(C), paragraph (b) and
paragraph (c)(1) of Rule 3312, as amended by this filing, would be in
effect during a pilot period set to end on December 10, 2010. If the
pilot is not either extended or made permanent by December 10, 2010,
the prior versions of paragraph (a)(2)(C), paragraph (b) and paragraph
(c)(1) of Rule 3312 would be in effect.
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\3\ Securities Exchange Act Release No. 62877 (September 9,
2010), 75 FR 56633 (September 16, 2010) (SR-PHLX-2010-79).
\4\ Securities Exchange Act Release No. 62886 (September 10,
2010), 75 FR 56613 (September 16, 2010) (File Nos. SR-BATS-2010-016;
SR-BX-2010-040; SR-CBOE-2010-056; SR-CHX-2010-13; SR-EDGA-2010-03;
SR-EDGX-2010-03; SR-ISE-2010-62; SR-NASDAQ-2010-076; SR-NSX-2010-07;
SR-NYSE-2010-47; SR-NYSEAmex-2010-60; SR-NYSEArca-2010-58).
\5\ The Exchange is also amending text in paragraphs
(a)(2)(A)(iii)B. and (e)(1) to correct minor typographical errors in
the text of the rule.
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The Exchange is proposing the rule changes described below in
consultation with other markets and Commission staff to provide for
uniform treatment: (1) Of clearly erroneous execution reviews in Multi-
Stock Events involving twenty or more securities; and (2) in the event
transactions occur that result in the issuance of an individual stock
trading pause by the primary market and subsequent transactions that
occur before the trading pause is in effect on the Exchange. The
Exchange has also proposed additional changes to Rule 3312 that reduce
the ability of the Exchange to deviate from the objective standards set
forth in the Rule. In addition, the Exchange is modifying certain
defined terms in the rule to match definitions used by other exchanges
in order to avoid the risk of confusion. The proposed changes are
described in further detail below.
Revised Paragraph (a)(2)(C)(ii) Related to Multi-Stock Events Involving
Twenty or More Securities
The Exchange proposes to eliminate the majority of existing
paragraph (a)(2)(C)(ii), which provides flexibility to the Exchange to
use different Numerical Guidelines or Reference Prices in various
``Unusual Circumstances.'' The Exchange proposes to replace this
paragraph with new language that would apply to Multi-Stock Events
involving twenty or more securities whose executions occurred within a
period of five minutes or less. The revised paragraph would retain
language making clear that during Multi-Stock Events involving twenty
or more securities the number of affected transactions may be such that
immediate finality is necessary to maintain a fair and orderly market
and to protect investors and the public interest. Accordingly, in such
circumstances, decisions made by the Exchange in consultation with
other markets could not be appealed. Further, as proposed, in
connection with reviews of Multi-Stock Events involving twenty or more
securities, the Exchange may use a Reference Price other than
consolidated last sale in its review of potentially clearly erroneous
executions. With the exception of those securities under review that
are subject to an individual stock trading pause as described in
proposed paragraph (a)(2)(C)(iv), and to ensure consistent application
across market centers when proposed paragraph (a)(2)(C)(ii) is invoked,
the Exchange will promptly coordinate with the other market centers to
determine the appropriate review period, which may be greater than the
period of five minutes or less that triggered application of proposed
paragraph (a)(2)(C)(ii), as well as select one or more specific points
in time prior to the transactions in question and use transaction
prices at or immediately prior to the one or more specific points in
time selected as the Reference Price. The Exchange will nullify as
clearly erroneous all transactions that are at prices equal to or
greater than 30% away from the Reference Price in each affected
security during the review period selected by the Exchange and other
markets consistent with the proposed paragraph (a)(2)(C)(ii).
Because the Exchange and other market centers are adopting a
different threshold and standards to handle large-scale market events,
which would include events occurring during times of high volatility at
the beginning of regular trading hours, the Exchange proposes deletion
of paragraph (a)(2)(C)(iv) (``Numerical Guidelines Applicable to
Volatile Market Opens'') of the existing rule. The Exchange believes
that this provision is no longer necessary, and if maintained, could
result in extremely high Numerical Guidelines (up to 90%) in certain
circumstances.
[[Page 61804]]
Revised Paragraph (a)(2)(C)(iv) Related to Individual Stock Trading
Pauses
The NASDAQ Exchange and other primary listing markets for U.S.
stocks recently amended their rules so that they may, from time to
time, issue a trading pause for an individual security if the price of
such security moves 10% or more from a sale in a preceding five-minute
period, and other exchanges have amended their rules to follow these
trading pauses. In this regard, the Exchange's approved rules for PSX
pause trading in an individual stock when the primary listing market
for such stock issues a trading pause, as provided in Rule
3100(a)(4).\6\ As described above, the Exchange is proposing to
eliminate existing paragraph (a)(2)(C)(iv) (``Numerical Guidelines
Applicable to Volatile Market Opens''). The Exchange proposes adopting
a rule, numbered as (a)(2)(C)(iv) following such elimination, that will
provide for uniform treatment of clearly erroneous execution reviews in
the event transactions occur that result in the issuance of an
individual stock trading pause by the primary listing market and
subsequent transactions that occur before the trading pause is in
effect on the Exchange. The proposed rule change is necessary to
provide greater certainty of the clearly erroneous Reference Price for
transactions that trigger a trading pause (the ``Trigger Trade'') and
subsequent transactions occurring between the time of the Trigger Trade
and the time the trading pause message is received by the Exchange from
the single plan processor responsible for consolidation and
dissemination of information for the security and put into effect on
the Exchange, especially under highly volatile and active market
conditions.
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\6\ Prior to the launch of trading on PSX, the Exchange will
submit a proposed rule change to amend Rule 3100(a)(4) to reflect
changes recently approved to the corresponding rules of other
exchanges. Securities Exchange Act Release No. 62884 (September 10,
2010), 75 FR 56618 (September 16, 2010) (SR-BATS-2010-018; SR-BX-
2010-044; SR-CBOE-2010-065; SR-CHX-2010-14; SR-EDGA-2010-05; SR-
EDGX-2010-05; SR-ISE-2010-66; SR-NASDAQ-2010-079; SR-NYSE-2010-49;
SR-NYSEAmex-2010-63; SR-NYSEArca-2010-61; SR-NSX-2010-08).
Securities Exchange Act Release No. 62884 amended trading pause
rules originally adopted by PSX in SR-PHLX-2010-79, supra n. 3, and
by other exchanges in Securities Exchange Act Release No. 62252
(June 10, 2010), 75 FR 34186 (June 16, 2010) (SR-BATS-2010-014; SR-
EDGA-2010-01; SR-EDGX-2010-01; SR-BX-2010-037; SR-ISE-2010-48; SR-
NYSE-2010-39; SR-NYSEAmex-2010-46; SR-NYSEArca-2010-41; SR-NASDAQ-
2010-061; SR-CHX-2010-10; SR-NSX-2010-05; SR-CBOE-2010-047).
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The Exchange proposes to revise paragraph (a)(2)(C)(iv) of Rule
3312 to allow the Exchange to use the price that triggered a trading
pause in an individual stock (the ``Trading Pause Trigger Price'') as
the Reference Price for clearly erroneous execution reviews of a
Trigger Trade and transactions that occur immediately after a Trigger
Trade but before a trading pause is in effect on the Exchange. As
proposed, the phrase ``Trading Pause Trigger Price'' shall mean the
price that triggered a trading pause pursuant to PHLX Rule 3100(a)(4).
The Trading Pause Trigger Price reflects a price calculated by the
primary listing market over a rolling five-minute period and may differ
from the execution price of a transaction that triggered a trading
pause. The Exchange will rely on the primary listing market that issued
an individual stock trading pause to determine and communicate the
Trading Pause Trigger Price for such stock. The Exchange proposes to
make clear in the text that the proposed standards in paragraph
(a)(2)(C)(iv) apply regardless of whether the security at issue is part
of a Multi-Stock Event involving five or more securities as described
in proposed paragraphs (a)(2)(C)(i) and (ii).
As proposed, the Numerical Guidelines set forth in PHLX Rule
3312(a)(2)(C)(i), other than those Numerical Guidelines applicable to
Multi-Stock Events, would apply to reviews of Trigger Trades and
subsequent transactions. The Exchange proposes to review, on its own
motion pursuant to paragraph (b)(2) of the Rule, all transactions that
trigger a trading pause and subsequent transactions occurring before
the trading pause is in effect on the Exchange. The Exchange has
proposed to limit such reviews to reviews of transactions that executed
at a price lower than the Trading Pause Trigger Price in the event of a
price decline and higher than the Trading Pause Trigger Price in the
event of a price rise. Because the proposed rules for trading pauses
would only apply within Regular Trading Hours,\7\ an execution would be
reviewed and nullified as clearly erroneous if it exceeds the following
thresholds:
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\7\ The term ``Regular Trading Hours'' is being renamed from
``Core Session'' in Rule 3312(a)(2)(B) as the time between 9:30 a.m.
and 4 p.m. Eastern Time. According to rules of the primary listing
markets, an individual stock trading pause can be issued based on a
Trigger Trade that occurs at any time between 9:45 a.m. and 3:35
p.m. Eastern Time. See NASDAQ Exchange Rule 4120(a)(11), NYSE Rule
80C, and NYSE Arca Rule 7.11.
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Numerical guidelines (Subject
transaction's % difference from
Reference price or product the Trading Pause Trigger
Price)
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Greater than $0.00 up to and including 10%.
$25.00.
Greater than $25.00 up to and including 5%.
$50.00.
Greater than $50.00.................... 3%.
Leveraged ETF/ETN securities........... Regular Trading Hours Numerical
Guidelines multiplied by the
leverage multiplier (i.e.,
2x).
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Revisions to Paragraph (b)
To be consistent with other exchanges, the Exchange is eliminating
paragraph (b) and adding new paragraphs (b)(1) and (b)(2) to separate
System Disruptions from Own Motion situations. Consistent with other
proposals made in this filing, the Exchange proposes modifying
paragraph (b) to eliminate the ability of a Senior Official to deviate
from the Numerical Guidelines contained in the Rule other than under
very limited circumstances set forth in paragraph (a)(2)(C)(iii).
New paragraph (b)(1) provides a Senior Official of the Exchange the
ability on his or her own motion, to review and rule on executions that
result from ``any disruption or a malfunction in the operation of any
electronic communications and trading facilities of the Exchange, or
extraordinary market conditions or other circumstances in which the
nullification of transactions may be necessary for the maintenance of a
fair and orderly market or the protection of investors and the public
interest exist.''
New paragraph (b)(2) is similar to existing Rule 3312(b) and covers
other situations where the Exchange may act on its own motion. Without
modification, the language ``extraordinary market conditions or other
circumstances * * *'' in current Rule 3312(b) would leave the Exchange
with broad discretion to deviate from the Numerical Guidelines set
forth in
[[Page 61805]]
paragraph (a)(2)(C)(i). Thus, the Exchange proposes narrowing the scope
of paragraph (b) so that it only permits the Exchange to nullify
transactions consistent with that paragraph (including at a lower
Numerical Guideline) if there is a disruption or malfunction in the use
of the Exchange's system covered by proposed Rule 3312(b)(1).
For the same reason, the Exchange proposes eliminating the words
``use or'' from the language in subsection (b) to make clear that the
provision only applies to a disruption or malfunction of the Exchange's
system (and not of a user of the Exchange's systems).
Paragraph (b)(2) gives a Senior Official of the Exchange the
ability on his or her own motion to review transactions as potentially
clearly erroneous. Consistent with the goal of achieving more objective
and standard results, the Exchange proposes deleting language in
existing paragraph (b) that would allow the Exchange to deviate from
the Numerical Guidelines contained in paragraph (a)(2)(C)(i). In
addition, the Exchange proposes to make clear that any Senior Official
reviewing transactions on his or her own motion must follow the
guidelines set forth in proposed paragraph (a)(2)(C)(iv), if
applicable. Accordingly, the Exchange proposes to modify paragraph
(b)(2) to state that an officer must rely on paragraphs (a)(2)(C)(i)-
(iv) of Rule 3312 when reviewing transactions on his or her own motion.
Additional Conforming Revisions to Paragraphs (a)(2)(C)(i) and
(a)(2)(C)(iii)
Based on proposed paragraph (a)(2)(C)(ii), the Exchange has
proposed certain conforming changes to paragraphs (a)(2)(C)(i) and
(iii) of the existing Rule, as described below.
Under current Rule 3312, a transaction may be found to be clearly
erroneous only if the price of the transaction to buy (sell) that is
the subject of the complaint is greater than (less than) the Reference
Price by an amount that equals or exceeds the Numerical Guidelines set
forth in paragraphs (a)(2)(C)(i) of the Rule. The ``Reference Price''
is currently defined as ``the consolidated last sale immediately prior
to the execution(s) under review except for in Unusual Circumstances *
* * .'' The Exchange proposes modifying paragraph (a)(2)(C)(i)
consistent with the changes described above such that the Exchange
shall use the consolidated last sale immediately prior to the
execution(s) under review as the Reference Price except for: (A) Multi-
Stock Events involving twenty or more securities, as described in
proposed paragraph (a)(2)(C)(ii); (B) transactions not involving a
Multi-Stock Event as described in proposed paragraph (a)(2)(C)(ii) that
trigger a trading pause and subsequent transactions, as described in
proposed paragraph (a)(2)(C)(iv), in which case the Reference Price
shall be determined in accordance with that paragraph (a)(2)(C)(iv);
and (C) in other circumstances, such as, for example, relevant news
impacting a security or securities, periods of extreme market
volatility, sustained illiquidity, or widespread system issues, where
use of a different Reference Price is necessary for the maintenance of
a fair and orderly market and the protection of investors and the
public interest. The Exchange also proposes modifying paragraph
(a)(2)(C)(i) to reduce uncertainty as to the applicability of the
Numerical Guidelines, by requiring a finding that an execution was
clearly erroneous if such execution exceeds the Numerical Guidelines,
subject only to the Additional Factors included in paragraph
(a)(2)(C)(iii). Moreover, the Exchange proposes revising the existing
description for Multi-Stock Events that is contained on the Numerical
Guidelines chart to make clear that different Numerical Guidelines
apply for Multi-Stock Events involving five or more, but less than
twenty, securities whose executions occurred within a period of five
minutes or less. In addition, the Exchange proposes adding to the
Numerical Guidelines chart a row that contains the Numerical Guidelines
(30%) for Multi-Stock Events involving twenty or more securities whose
executions occurred within a period of five minutes or less.
The Exchange proposes clarifying paragraph (a)(2)(C)(iii) to make
clear that the additional factors set forth in that paragraph are not
intended to provide any discretion to an Exchange official to deviate
from the guidelines that apply to Multi-Stock Events or to transactions
in securities subject to individual stock trading pauses.
The Exchange also proposes amending paragraph (c)(1), related to
appeals of clearly erroneous execution decisions by the Exchange, to
preserve non-appealability of all joint rulings between the Exchange
and one or more other market centers. The Exchange believes that
certainty and consistency is critical to reviews of related executions
that span multiple market centers. Accordingly, although the Exchange
has proposed deletion of such language from existing paragraph
(a)(2)(C)(iii), the Exchange proposes adding such language back in to
paragraph (c)(1) to make clear that joint market rulings are not
appealable.
Finally, the Exchange is amending text in paragraphs
(a)(2)(A)(iii)B. and (e)(1) to correct minor typographical errors in
the text of the existing rule.
2. Statutory Basis
The rule change proposed in this submission is consistent with the
requirements of the Act and the rules and regulations thereunder that
are applicable to a national securities exchange, and, in particular,
with the requirements of Section 6(b) of the Act.\8\ In particular, the
proposed change is consistent with Section 6(b)(5) of the Act,\9\
because it would promote just and equitable principles of trade, remove
impediments to, and perfect the mechanism of, a free and open market
and a national market system, and, in general, protect investors and
the public interest. The proposed rule change is also designed to
support the principles of Section 11A(a)(1) \10\ of the Act in that it
seeks to assure fair competition among brokers and dealers and among
exchange markets. The Exchange believes that the proposed rule meets
these requirements in that it promotes transparency and uniformity
across markets concerning reviews of potentially clearly erroneous
executions in various contexts, including reviews in the context of a
Multi-Stock Event involving twenty or more securities and reviews
resulting from a Trigger Trade and any executions occurring immediately
after a Trigger Trade but before a trading pause is in effect on the
Exchange. Further, the Exchange believes that the proposed changes
enhance the objectivity of decisions made by the Exchange with respect
to clearly erroneous executions.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(5).
\10\ 15 U.S.C. 78k-1(a)(1).
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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.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
[[Page 61806]]
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; or (iii)
become operative for 30 days after the date of the filing, or such
shorter time as the Commission may designate, if consistent with the
protection of investors and the public interest, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \11\ and Rule 19b-
4(f)(6) thereunder.\12\
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\11\ 15 U.S.C. 78s(b)(3)(A).
\12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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The Exchange has requested that the Commission waive the 30-day
operative delay. The Commission hereby grants that request.\13\ The
Commission believes that waiver of the operative delay is consistent
with the protection of investors and the public interest because it has
recently approved Phlx's proposal to initiate trading on PSX, which it
plans to do on October 8, 2010, and believes that the proposed rule
change should be implemented on that date to ensure that the Exchange's
rules on clearly erroneous trades are consistent with the recently
approved changes to the clearly erroneous execution rules of the other
markets.
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\13\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the 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 to
determine whether the proposed rule 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:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File No. SR-Phlx-2010-125 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File No. SR-Phlx-2010-125. This file
number should be included on the subject line if e-mail 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies
of the submission,\14\ all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street, NE., Washington,
DC 20549, on official business days between the hours of 10 a.m. and 3
p.m. Copies of such filing also will be available for inspection and
copying at the principal office of Phlx. 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 No. SR-Phlx-2010-125 and should be submitted on or
before October 27, 2010.
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\14\ The text of the proposed rule change is available on the
Commission's Web site at http://www.sec.gov.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-25137 Filed 10-5-10; 8:45 am]
BILLING CODE 8010-01-P