[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Notices]
[Pages 12157-12160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4889]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63971; File No. SR-NYSEARCA-2011-05]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca
Equities Rule 7.16 (Short Sales) in Order To Implement the Provisions
of Rule 201 of Regulation SHO Under the Securities Exchange Act of 1934
February 25, 2011.
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 February 24, 2011, 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 and II
below, which Items have been substantially 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 NYSE Arca Equities Rule 7.16 (Short
Sales) in order to implement the provisions of Rule 201 of Regulation
SHO (``Rule 201'') \4\ under the Act, which, if triggered, imposes a
restriction on the prices at which covered securities may be sold short
(``Short Sale Price Test''). Among other things, Rule 201 requires
trading centers to establish, maintain, and enforce written policies
and procedures reasonably designed to prevent the execution or display
of a short sale order of a covered security at a price that is less
than or equal to the current national best bid if the price of a
covered security decreases by 10% or more from the covered security's
closing price as determined by the listing market for the covered
security as of the end of regular trading hours on the prior day. The
proposed rule amendment would establish procedures for the Exchange, as
a listing market, to determine that a Short Sale Price Test has been
triggered for a covered security. The proposed rule amendment would
also establish the protocols for the handling of short sale orders by
the Exchange, as a trading center, in the event the Short Sale Price
Test is triggered, including establishing what types of short sale
orders will be re-priced to achieve a permitted price, in accordance
with Rule 201, during the period in which a Short Sale Price Test is in
effect (``Short Sale Period'').\5\ Amended Rule 7.16 would also
establish Exchange procedures regarding the execution and display of
permissible orders during the Short Sale Period, and the execution of
orders marked ``short exempt.'' Finally, the proposed rule amendment
would also establish Exchange procedures for addressing situations
where the Exchange determines that the Short Sale Price Test for a
covered security was triggered by a ``clearly erroneous'' execution as
that term is defined in NYSE Arca Equities Rule 7.10.\6\
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\4\ 17 CFR 242.201.
\5\ See notes 23-31 infra and accompanying text.
\6\ See infra note 22 and accompanying text regarding ``clearly
erroneous'' trades and proposed Rule 7.16(f)(iv)(A). The proposed
rule amendment would, among other things, establish the duration of
the Short Sale Price Test. See infra note 21 and accompanying text.
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The Exchange also proposes to amend NYSE Arca Equities Rule 7.65,
which applies to the Exchange's Portfolio Crossing Service (``PCS''),
to exempt PCS transactions from the short sale price test restrictions
contained in NYSE Arca Equities Rule 7.16(f). PCS short sale
transactions would, however, be subject to the order marking and
securities lending provisions of Paragraphs (a)-(e) of NYSE Arca
Equities Rule 7.16. The text of the proposed rule change is available
at the Exchange, the Commission's Public Reference Room, and http://www.nyse.com.
[[Page 12158]]
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
On February 26, 2010, the Commission adopted amendments to Rule
201.\7\ Among other things, the amendments establish a short sale-
related circuit breaker that, if triggered with respect to a covered
security,\8\ imposes a short sale price test.\9\ Amended Rule 201
became effective on May 10, 2010 and the compliance date for the Rule
is February 28, 2011.\10\
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\7\ Amendments to Regulation SHO, Securities Exchange Act
Release No. 61595 (Feb. 26, 2010), 75 FR 11232 (Mar. 10, 2010)
(``Rule 201 Adopting Release''). In the Rule 201 Adopting Release,
the Commission also adopted amendments to Rule 200(g) of Regulation
SHO to include a ``short exempt'' marking requirement. 17 CFR
242.200(g).
\8\ The term ``covered security'' shall have the same meaning as
in Rule 201 of Regulation SHO. Rule 201(a)(1) defines the term
``covered security'' to mean any ``NMS stock'' as defined under Rule
600(b)(47) of Regulation NMS. Rule 600(b)(47) of Regulation NMS
defines an ``NMS stock'' as ``any NMS security other than an
option.'' Rule 600(b)(46) of Regulation NMS defines an ``NMS
security'' as ``any security or class of securities for which
transaction reports are collected, processed, and made available
pursuant to an effective transaction reporting plan, or an effective
national market system plan for reporting transactions in listed
options.'' 17 CFR 242.201(a)(1); 17 CFR 242.600(b)(47); and 17 CFR
242.600(b)(46).
\9\ 17 CFR 242.201(b).
\10\ Rule 201 Adopting Release, 75 FR 11232. The Rule 201
compliance date, originally set for November 10, 2010, was extended
to February 28, 2011 in Securities Exchange Act Release No. 63247
(Nov. 4, 2010), 75 FR 68702 (Nov. 9, 2010). The May 10th effective
date and February 28th compliance date also apply to amended Rule
200(g).
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Rule 201(b) requires that trading centers,\11\ including NYSE Arca,
establish, maintain, and enforce written policies and procedures
reasonably designed to prevent the execution or display of a short sale
order of a covered security at a price that is less than or equal to
the current national best bid \12\ if the price of that covered
security decreases by 10% or more from the covered security's closing
price as determined by the listing market \13\ for the covered security
as of the end of regular trading hours on the prior day (``Trigger
Price'').\14\ In addition, Rule 201(b) requires that trading centers
establish, maintain, and enforce written policies and procedures
reasonably designed to impose the Short Sale Price Test for the
remainder of the day and the following day when a national best bid for
the covered security is calculated and disseminated on a current and
continuing basis by a plan processor pursuant to an effective national
market system plan.\15\
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\11\ Rule 201(a)(9) states that the term ``trading center''
shall have the same meaning as in Rule 600(b)(78) of Regulation NMS.
Rule 600(b)(78) defines a ``trading center'' as ``a national
securities exchange or national securities association that operates
an SRO trading facility, an alternative trading system, an exchange
market maker, an OTC market maker, or any other broker or dealer
that executes orders internally by trading as principal or crossing
orders as agent.'' 17 CFR 242.600(b)(78).
\12\ The term ``national best bid'' shall have the same meaning
as in Rule 201 of Regulation SHO. Rule 201(a)(4) states that such
term shall have the same meaning as in Rule 600(b)(42) of Regulation
NMS. 17 CFR 242.201(a)(4). See also 17 CFR 242.600(b)(42).
\13\ The term ``listing market'' shall have the same meaning as
in Rule 201 of Regulation SHO. Rule 201(a)(3) defines the term
``listing market'' to have the same meaning as the term ``listing
market'' as defined in the effective transaction reporting plan for
the covered security. 17 CFR 242.201(a)(3). See also 17 CFR
242.201(a)(2).
\14\ 17 CFR 242.201(b)(1)(i).
\15\ 17 CFR 242.201(b)(1)(ii). In addition, if the price of a
covered security declines intra-day by at least 10% on a day on
which the security is already subject to the short sale price test
restriction of Rule 201, the restriction will be re-triggered and,
therefore, will continue in effect for the remainder of that day and
the following day. See Rule 201 Adopting Release, 75 FR 11232,
11253, n. 290. Rule 201 does not place any limit on the frequency or
number of times the circuit breaker can be re-triggered with respect
to a particular stock. Division of Trading and Markets: Responses to
Frequently Asked Questions Concerning Rule 201 of Regulation SHO, at
Q&A 2.2 (``T&M FAQs'').
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In the Rule 201 Adopting Release, the Commission stated that it was
appropriate to adopt a short sale-related circuit breaker because, when
triggered, it will prevent short selling, including potentially
manipulative or abusive short selling, from driving down further the
price of a security that has already experienced a significant intra-
day price decline, and will facilitate the ability of long sellers to
sell first upon such a decline.\16\ The Commission further stated that
this approach establishes a narrowly-tailored Rule that strikes an
appropriate balance between its goal of preventing potential short sale
abuses and the need to limit impediments to the normal operations of
the market,\17\ and as such, the Rule will help address the erosion of
investor confidence in markets generally.\18\ For these reasons, the
Exchange seeks to amend its short sale rule to comply with the
Commission's amendment of Rule 201.
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\16\ Rule 201 Adopting Release, 75 FR 11232.
\17\ Rule 201 Adopting Release, 75 FR 11232, 11252.
\18\ See id.
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Paragraph (f)(ii) of Rule 7.16, as proposed to be amended, makes
clear that, in compliance with Rule 201, in the event a covered
security experiences a decrease in price of 10% or more, as determined
by the listing market for the security, from the security's closing
price on the listing market as of the end of regular trading hours on
the prior day, except for certain permissible and ``short exempt''
orders,\19\ Exchange systems will not execute or display a short sale
order with respect to that security at a price that is less than or
equal to the current national best bid.
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\19\ See paragraphs (vi) and (vii) of proposed Rule 7.16(f)
regarding the treatment of permissible and ``short exempt'' orders.
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Where the Exchange is the listing market for a covered security,
Exchange systems will determine whether the short sale price test
restrictions of Rule 201 have been triggered (i.e., whether a
transaction in a covered security has occurred at a Trigger Price) and
will notify the single plan processor responsible for consolidation of
information for the covered security pursuant to Rule 603(b) of
Regulation NMS.\20\ The Trigger Price of a covered security will not be
calculated until the Exchange opens trading for that security. In
circumstances where a covered security did not trade on the Exchange on
the prior trading day (for example, due to a trading halt, trading
suspension, or otherwise), the Exchange will base its determination of
the Trigger Price on the last sale price on the Exchange for that
security on the most recent day on which the security did trade.
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\20\ 17 CFR 242.201(b)(3). See also Rule 201(a)(6) of Regulation
SHO, which defines the term ``plan processor'' to have the same
meaning as in Rule 600(b)(55) of Regulation NMS. 17 CFR
242.600(b)(55). The single plan processors are ``exclusive
processors'' as defined under Section 3(a)(22) of the Act. See 15
U.S.C. 78c(a)(22).
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Once a Short Sale Price Test is triggered by the listing market,
the Short Sale Price Test will remain in effect until the close of
trading on the next trading day.\21\ If, however, the Exchange
determines that the Short Sale Price Test for a covered security was
triggered because of a clearly erroneous
[[Page 12159]]
execution,\22\ the Exchange may lift the Short Sale Price Test before
the Short Sale Period ends for securities for which the Exchange is the
listing market or, for securities listed on another market, notify the
other market of the Exchange's determination that the triggering
transaction was a clearly erroneous execution. Similarly, if the
Exchange determines that the prior day's closing price for a covered
security for which the Exchange is the listing market is incorrect in
Exchange systems and resulted in an incorrect determination that the
short sale price test restriction had been triggered, the Exchange may
correct the prior day's closing price and lift the Short Sale Price
Test before the Short Sale Period ends.
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\21\ The Short Sale Price Test will remain in effect at all
times when quotation information and the national best bid is
collected, processed and disseminated. This may extend beyond
regular trading hours. T&M FAQs, supra note 15, at Q&A 2.1.
\22\ Determination of a ``clearly erroneous'' transaction will
be made in accordance with Rule 7.10.
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During the Short Sale Period, short sale orders that are limited to
the national best bid or lower and short sale market orders will be re-
priced by Exchange systems one minimum price increment above the
current national best bid (``Permitted Price'') to permit their
execution at a price that is compliant with the Short Sale Price Test.
Consistent with Rule 201,\23\ the Permitted Price for securities for
which the national best bid is $1 or more is $.01 above the national
best bid; the Permitted Price for securities for which the national
best bid is below $1 is $.0001 above the national best bid.\24\
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\23\ Rule 201 Adopting Release, 75 FR 11232, 11247.
\24\ See 17 CFR 242.612.
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For displayed orders, the Exchange will continue to re-price a
short sale order downward as the national best bid moves down but will
not re-price upwards. For non-displayed orders, the Exchange will
continue to re-price short sale orders both downward and upwards to
reflect changes in the national best bid. The following are the pricing
protocols during the Short Sale Period for specific order types that
are not marked ``short exempt'':
(A) Reject Option--Individual short sale orders may be marked to be
rejected back if entered while a symbol is subject to the Short Sale
Price Test.
(B) MPL Orders--Mid-Point Passive Liquidity (``MPL'') orders \25\
will continue to be priced at the mid-point of the national best bid
and national best offer, including situations where the mid-point is
not one minimum price increment above the national best bid.\26\
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\25\ NYSE Arca Equities Rule 7.31(h)(5). These orders will not
be displayed or executed at the national best bid in locked markets.
\26\ Exchange system handling of orders will comply with the
pricing increment provisions of Rule 612 of Regulation NMS. See 17
CFR 242.612.
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(C) Re-pricing of Marketable Orders--All other marketable short
sale orders will be re-priced at the Permitted Price. To reflect
declines in the national best bid, the Exchange will continue to re-
price a short sale order at the lowest Permitted Price down to the
order's original limit price, or if a market order, until the order is
filled.
(D) Undisplayed Orders--Short sale orders that are not displayable
upon entry will be handled as follows by Exchange systems:
(i) Market orders and Passive Liquidity (``PL'') orders \27\ will
be re-priced at a Permitted Price. Market orders and PL orders will
continuously re-price at a Permitted Price as the national best bid
moves both up and down.
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\27\ NYSE Arca Equities Rule 7.31(h)(4).
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(ii) PNP (``Post No Preference'') Blind (``PNPB'') orders \28\ will
be re-priced at a Permitted Price. PNPB orders are displayed once they
are re-priced. PNPB orders will re-price down when the national best
bid moves down but will not move up in price if the national best bid
moves up and will instead remain at the price displayed.
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\28\ NYSE Arca Equities Rule 7.31(mm).
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(E) IOC Orders--Immediate or Cancel (IOC'') orders,\29\ requiring
that all of part of the order be executed immediately, will be executed
to the extent possible at a Permitted Price and higher and then
cancelled, and will not be re-priced.
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\29\ NYSE Arca Equities Rule 7.31(e).
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(F) PNP ISO Orders--PNP Inter-market Sweep orders \30\ are rejected
if the price is at or below the current national best bid.
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\30\ NYSE Arca Equities Rule 7.31(w) and (jj).
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(G) Short Sale Cross Orders--Short sale cross orders \31\ priced at
or below the current national best bid will be rejected.
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\31\ NYSE Arca Equities Rule 7.31(s).
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During the Short Sale Period, Exchange systems will execute and
display a short sale order without regard to price if, at the time of
initial display of the short sale order, the order was at a price above
the then current national best bid.\32\ Un-displayed short sale orders
that are entered into the Exchange's systems prior to the Short Sale
Period will be re-priced as described above.
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\32\ 17 CFR 242.201(b)(1)(iii)(A).
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As permitted by Rule 201, during the Short Sale Period, Exchange
systems will execute and display orders marked ``short exempt'' without
regard to whether the order is at a Permitted Price. Exchange systems
will also accept orders marked ``short exempt'' at any time when such
systems are open for order entry, regardless of whether the Short Sale
Price Test has been triggered.\33\
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\33\ Exchange systems will also follow the guidance in the T&M
FAQs. See supra note 15.
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During the Short Sale Period, re-priced PNP Blind, PL and MPL
discretion orders will be ranked in the NYSE Arca Book \34\ in time
order. Market orders have priority over all other order types.
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\34\ NYSE Arca Equities Rule 1.1 (definition of NYSE Arca Book).
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In addition, at any time sell orders may be cancelled and replaced
as follows; (1) sell to sell short, (2) sell to sell short exempt, (3)
sell short to sell, (4) sell short to sell short exempt, (5) sell short
exempt to sell, and (6) sell short exempt to sell short. Orders
modified will retain their priority in the NYSE Arca Book provided they
are not increasing in volume or changing price.\35\
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\35\ Cancelled and replaced orders that have been re-priced will
not retain their priority in the NYSE Arca Book.
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The Exchange is also proposing to amend 7.16(a) to define ``short
exempt'' orders and to amend 7.16(b) and 7.16(c) to add language
providing for ``short exempt'' marking in accordance with Rule 200(g)
of Regulation SHO.\36\
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\36\ 17 CFR 242.200(g)(2). Under Rule 200(g)(2), an order may be
marked ``short exempt'' if the broker-dealer had a reasonable basis
for believing that the order meets one of the exceptions specified
in Rule 201(d) of Regulation SHO or if it is entered during a Short
Sale Period and meets the conditions specified in Rule 201(c) of
Regulation SHO. See 17 CFR 242.201(d); 17 CFR 242.201(c); T&M FAQs,
supra note 15, at Q&As 4.2, 5.4 and 5.5.
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Finally, the Exchange also proposes to amend NYSE Arca Equities
Rule 7.65, which applies to the Exchange's PCS, to exempt PCS
transactions from the short sale price test contained in NYSE Arca
Equities Rule 7.16(f). PCS transactions occur after the 8 pm (Eastern
time) close of the consolidated transaction reporting system and
consolidated quotation dissemination. Accordingly, PCS transactions
would not be subject to the short sale price test restrictions of Rule
201, as reflected in NYSE Arca Equities Rule 7.16, which apply only
when the national best bid is calculated and disseminated.\37\ PCS
short sale transactions would, however, be subject to the order marking
and securities lending provisions of Paragraphs (a)-(e) of NYSE Arca
Equities Rule 7.16.
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\37\ See T&M FAQs, supra note 15, at Q&A 2.1.
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2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b)
[[Page 12160]]
of the Act,\38\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\39\ in particular, in that it is designed to, among
other things, prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, and, in general, to
protect investors and the public interest. The proposal is designed to
implement the provisions of Rule 201 of Regulation SHO by establishing,
maintaining and enforcing written policies and procedures reasonably
designed to prevent the execution or display of a short sale order of a
covered security in violation of the short sale price restrictions
established in that rule. To that end, the proposed rule change will,
among other things, establish the Exchange's procedures regarding the
execution and display of permissible orders during the Short Sale
Period, and the execution of orders marked ``short exempt.''
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\38\ 15 U.S.C. 78f(b).
\39\ 15 U.S.C. 78f(b)(5).
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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
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 has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \40\ and Rule 19b-4(f)(6) thereunder.\41\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \42\ and Rule 19b-
4(f)(6)(iii) thereunder.\43\
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\40\ 15 U.S.C. 78s(b)(3)(A)(iii).
\41\ 17 CFR 240.19b-4(f)(6).
\42\ 15 U.S.C. 78s(b)(3)(A)(iii).
\43\ 17 CFR 240.19b-4(f)(6)(iii). 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 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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A proposed rule change filed under Rule 19b-4(f)(6) \44\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\45\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Commission hereby
grants the request.\46\ Waiving the 30-day operative delay will allow
the Exchange to implement the proposed amendments by February 28, 2011,
which, as noted by the Exchange, is the compliance date for amendments
to Regulation SHO under the Act. By waiving the operative delay, the
Exchange will be able to comply with the amendments to Regulation SHO
by February 28, 2011. Therefore, the Commission believes it is
consistent with the protection of investors and the public interest to
waive the 30-day operative delay and designates the proposal as
operative upon filing.
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\44\ 17 CFR 240.19b-4(f)(6).
\45\ 17 CFR 240.19b-4(f)(6)(iii).
\46\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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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.
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 Number SR-NYSEARCA-2011-05 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2011-05. 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 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 20549-1090. Copies of the filing will also
be available for inspection and copying at the Exchange's principal
office and on its Internet Web site at http://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-2011-05 and should
be submitted on or before March 25, 2011.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\47\
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\47\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-4889 Filed 3-3-11; 8:45 am]
BILLING CODE 8011-01-P