52028 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4For purposes of this filing, the term 

‘‘Exchanges’’ refers collectively to BATS Exchange, 

Inc., BATS Y–Exchange, Inc., NASDAQ OMX BX, 

Inc., Chicago Board Options Exchange, Inc., 

Chicago Stock Exchange, Inc., EDGA Exchange, 

Inc., EDGX Exchange, Inc., International Securities 

Exchange LLC, The NASDAQ Stock Market LLC, 

New York Stock Exchange LLC, NYSE Amex LLC, 

NYSE Arca, Inc., National Stock Exchange, Inc., and 

NASDAQ OMX PHLX LLC. 

5See NYSE Rule 80C. The pauses under NYSE 

Rule 80C occur when a security’s price moves by 

the applicable percentage within a five-minute 

period between 9:45 a.m. and 3:35 p.m., or in the 

case of an early scheduled close, 25 minutes before 

the close of trading. Such pauses last for five 

minutes. At the conclusion of the pause period, the 

security is opened pursuant to NYSE Rule 80C(b). 

6See Securities Exchange Act Release Nos. 62252 

(June 10, 2010), 75 FR 34186 (June 16, 2010) (File 

Nos. 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; and SR– 

CBOE–2010–047) and 62251 (June 10, 2010), 75 FR 

34183 (June 16, 2010) (SR–FINRA–2010–025). 

7See, e.g., Securities Exchange Act Release Nos. 

62884 (September 10, 2010), 75 FR 56618 

(September 16, 2010) (File Nos. 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; and SR–NSX–2010–08) 

and 62883 (September 10, 2010), 75 FR 56608 

(September 16, 2010) (SR–FINRA–2010–033). 

8See 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; 

and SR–NYSEArca–2010–58). 

9Pursuant to NYSE Rule 128(c)(1), during regular 

trading hours a security with a Reference Price of 

greater than zero and up to an including $25 is 

subject to a 10% threshold; a security with a 

Reference Price of greater than $25 and up to and 

including $50 is subject to a 5% threshold; and a 

security with a Reference Price of greater than $50 

is subject to a 3% threshold. 

10See NYSE Rule 128(c)(4). 

11See Securities Exchange Act Release No. 64735 

(June 23, 2011), 76 FR 38243 (June 29, 2011) (File 

Nos. SR–BATS–2011–016; SR–BYX–2011–011; SR– 

BX–2011–025; SR–CBOE–2011–049; SR–CHX– 

2011–09; SR–EDGA–2011–15; SR–EDGX–2011–14; 

SR–FINRA–2011–023; SR–ISE–2011–028; SR– 

NASDAQ–2011–067; SR–NYSE–2011–21; SR– 

NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– 

NSX–2011–06; and SR–Phlx–2011–64). 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–65111; File No. SR–NYSE– 

2011–42] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Amending 

NYSE Rule 128 So That Clearly 

Erroneous Executions Involving 

Securities Recently Added to the 

Individual Security Trading Pause Pilot 

Under NYSE Rule 80C Continue To Be 

Resolved in the Same Manner Before 

Being Added to the Pilot 

August 11, 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 August 9, 

2011, 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

NYSE Rule 128 so that clearly erroneous 

executions involving securities recently 

added to the individual security trading 

pause pilot under NYSE Rule 80C 

continue to be resolved in the same 

manner as they were before being added 

to the pilot. The text of the proposed 

rule change is available at the Exchange, 

the Commission’s Public Reference 

Room, and http://www.nyse.com. 

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 

NYSE Rule 128 so that clearly erroneous 

executions involving securities recently 

added to the individual security trading 

pause pilot under NYSE Rule 80C 

continue to be resolved in the same 

manner as they were before being added 

to the pilot. 

Background 

The Exchanges 4 and the Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’), in consultation with the 

Commission, have made changes to 

their respective rules in a concerted 

effort to strengthen the markets after the 

severe market disruption that occurred 

on May 6, 2010. One such effort by the 

Exchanges and FINRA was to adopt a 

uniform trading pause process during 

periods of extraordinary market 

volatility as a pilot in S&P 500 Index 

stocks (‘‘Pause Pilot’’),5 approved by the 

Commission on June 10, 2010.6 On 

September 10, 2010, the Commission 

approved the Exchanges’ and FINRA’s 

proposals to add the securities included 

in the Russell 1000 Index and specified 

Exchange-Traded Products (‘‘ETPs’’) to 

the Pause Pilot.7 On September 10, 

2010, the Commission also approved 

changes proposed by the Exchanges to 

amend certain of their respective rules 

to set forth clearer standards and curtail 

their discretion with respect to breaking 

erroneous trades.8 The changes, among 

other things, provided for uniform 

treatment of clearly erroneous execution 

reviews in the event of transactions that 

result in the issuance of an individual 

stock trading pause pursuant to the 

Pause Pilot on the primary listing 

market and those transactions that occur 

up to the time the trading pause 

message is received by the other markets 

from the single plan processor 

responsible for consolidation and 

dissemination of information for the 

security (‘‘Latency Trades’’). 

As part of the changes to the clearly 

erroneous process under NYSE Rule 

128, NYSE added new text to NYSE 

Rule 128(c)(4) to provide clarity in the 

clearly erroneous process when a Pause 

Pilot trading pause is triggered. 

Pursuant to NYSE Rule 128(c)(4), 

Latency Trades will be broken by the 

Exchange if they exceed the applicable 

percentage from the Reference Price, as 

noted in the table found under NYSE 

Rule 128(c)(1).9 The Reference Price, for 

purposes of Rule 128(c)(4), is the price 

that triggered a trading pause pursuant 

to the Pause Pilot (the ‘‘Trading Pause 

Trigger Price’’). As such, Latency Trades 

that occur on the Exchange would be 

broken by the Exchange pursuant to 

NYSE Rule 128(c)(4) if the transaction 

occurred at either three, five or ten 

percent above the Trading Pause Trigger 

Price.10

On June 23, 2011, the Commission 

approved a joint proposal to expand the 

respective Pause Pilot rules of the 

Exchanges and FINRA to include all 

remaining NMS stocks (‘‘Phase III 

Securities’’).11 The new pilot rules, 

which will be implemented on August 


jlentini on DSK4TPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Notices 52029 

12See SR–NYSE–2011–40 (extending NYSE Rule 

80C pilot until January 31, 2012) and SR–NYSE– 

2011–41 (extending NYSE Rule 128 pilot until 

January 31, 2012). 13See supra note 9. 

14NYSE notes that the Exchanges are filing 

similar proposals to make the changes proposed 

herein. 15 15 U.S.C. 78f(b)(5). 16 15 U.S.C. 78k–1(a)(1). 

8, 2011, not only expand the application 

of the Pause Pilot, but also apply larger 

percentage moves that trigger a pause to 

the Phase III Securities. The Exchange 

amended its Pause Pilot rule, NYSE 

Rule 80C, by adding three new 

subparagraphs to Rule 80C(a) to address 

the treatment of the Phase III Securities. 

The rule applicable to the original Pause 

Pilot securities was placed in new NYSE 

Rule 80C(a)(i). The rules applicable to 

the Phase III Securities were placed in 

new NYSE Rule 80C(a)(ii) and (iii). A 

pause under NYSE Rule 80C(a)(ii) is 

triggered by a 30 percent price move 

within a five-minute period in a Phase 

III Security that had a closing price on 

the previous trading day of $1 or more. 

A pause under NYSE Rule 80C(a)(iii) is 

triggered by a 50 percent price move 

within a five-minute period in a Phase 

III Security that had a closing price on 

the previous trading day of less than $1. 

If no prior day closing price is available, 

the last sale reported to the 

Consolidated Tape on the previous 

trading day is used. 

The Exchange has submitted 

immediately effective proposed rule 

changes to the Commission to extend 

both the Pause Pilot under NYSE Rule 

80C and the clearly erroneous execution 

process pilot under Rule 128 until 

January 31, 2012.12

The Issue 

The recently-approved changes to the 

Pause Pilot will have the unintended 

effect of removing the Phase III 

Securities from the normal clearly 

erroneous process and potentially result 

in unfair outcomes in the face of severe 

volatility in such securities. Phase III 

Securities are currently subject to the 

clearly erroneous process under NYSE 

Rule 128(c)(1)–(3), which applies to all 

securities except the current Pause Pilot 

securities subject to a pause. For 

purposes of transactions in securities 

not involving Pause Pilot securities, or 

transactions involving Pause Pilot 

securities that occur when there is not 

a pause pursuant to the Pause Pilot, the 

Reference Price is the consolidated last 

sale price immediately prior to the 

execution(s) under review, subject to 

certain exceptions.13 As noted above, 

the Trading Pause Trigger Price is used 

as the Reference Price when a Pause 

Pilot pause is in effect. As a 

consequence, under the current rules a 

Latency Trade is subject to the clearly 

erroneous thresholds based on the 

Trading Pause Trigger Price, which 

represents a ten percent or greater move 

in the transacted price of the security in 

a five-minute period. 

Under the amended Pause Pilot rule, 

a Latency Trade in a Phase III Security 

occurs only after either a 30 or 50 

percent (or greater) move in the 

transacted price of the security in a fiveminute period. As a result, a member 

organization that trades in a Phase III 

Security that triggers a clearly erroneous 

threshold of three, five or ten percent 

from the Reference Price, yet falls below 

the Pause Pilot trigger of either 30 or 50 

percent, would be able to avail 

themselves of a clearly erroneous 

review. A similarly situated member 

organization that transacts in the same 

security as a Latency Trade at a price 

equal to or greater than the Phase III 

Security thresholds, yet less than the 

clearly erroneous thresholds under 

NYSE Rule 128(c)(1), would not be able 

to avail themselves of the clearly 

erroneous process. Another member 

organization that transacts in the same 

security as a Latency Trade that exceeds 

three, five or ten percent from the 

Trading Pause Trigger Price would 

automatically receive clearly erroneous 

relief. The Exchange believes that this 

would be an inequitable result and an 

arbitrary application of the clearly 

erroneous process. Specifically, the 

Exchange believes that, since the 30 and 

50 percent triggers of the Pause Pilot are 

substantially greater than the 10 percent 

threshold of the original Pause Pilot, the 

Phase III Securities should remain 

under the current clearly erroneous 

process of NYSE Rule 128(c)(1)–(3). 

Applying the clearly erroneous 

process under NYSE Rule 128(c)(1)–(3) 

to the Phase III Securities would allow 

the Exchange to review all transactions 

that exceed the normal clearly 

erroneous thresholds and Reference 

Price, and, importantly, avoid arbitrary 

selection of ‘‘winners’’ and ‘‘losers’’ in 

the face of severe volatile moves in a 

security of 30 or 50 percent over a fiveminute period. For example, a member 

organization that trades in a security 

subject to NYSE Rule 80C(a)(ii) and (iii) 

that triggers a clearly erroneous 

threshold of three, five or ten percent, 

yet falls below the Pause Pilot trigger 

threshold trading at 29 percent from the 

prior day’s closing price, would be 

potentially entitled to a clearly 

erroneous break pursuant NYSE Rule 

128(c)(1). Should trading in that same 

security trigger a trading pause at a price 

of 30 or 50 percent greater than the prior 

day’s close, the member organization 

would not be entitled to a clearly 

erroneous trade break unless that trade 

exceeded three, five or ten percent 

beyond the price that triggered the 

pause. This scenario causes an inequity 

among a group of member organizations 

that have transactions in the Phase III 

Securities falling between the three, five 

and ten percent thresholds from the 

Reference Price under the normal NYSE 

Rule 128(c)(1) clearly erroneous process 

and the Pause Pilot clearly erroneous 

triggers of three, five or ten percent 

away from the Trading Pause Trigger 

Price. Such member organizations 

would not be provided relief under the 

clearly erroneous rules merely due to 

the imposition of a Pause Pilot halt, 

notwithstanding that other member 

organizations with transactions that 

occur at the same rolling five minute 

percentage difference. The Exchange 

believes a better outcome is to afford all 

member organizations transacting in 

Phase III Securities the opportunity of 

having such trades reviewed. 

Summary 

The expansion of the Pause Pilot to 

the Phase III Securities will have the 

unintended consequence of setting the 

point at which a clearly erroneous 

transaction occurs once a Pause Pilot 

pause is initiated far beyond the triggers 

applied prior to the expansion, which 

will, in turn, prevent certain market 

participants from availing themselves of 

the clearly erroneous rules, 

notwithstanding that other similarly 

situated participants are able to do so. 

The Exchange believes that this would 

be an arbitrary application of the clearly 

erroneous process in a manner that is 

unfair and not consistent with the spirit 

and purpose of the rule. Accordingly, 

the Exchange is proposing to amend 

NYSE Rule 128(c)(1)–(4) to specify that 

NYSE Rule 128(c)(4) applies only to the 

current securities of the Pause Pilot, as 

found under NYSE Rule 80C(a)(i).14

2. Statutory Basis 

The statutory basis for the proposed 

rule change is Section 6(b)(5) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),15 which requires the rules of an 

exchange to promote 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 proposed rule 

change also is designed to support the 

principles of Section 11A(a)(1) 16 of the 

Act in that it seeks to assure fair 

competition among brokers and dealers 

and among exchange markets. The 


jlentini on DSK4TPTVN1PROD with NOTICES
52030 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Notices 

17 15 U.S.C. 78s(b)(3)(A). 

18 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

19b–4(f)(6)(iii) requires that a self-regulatory 

organization submit to 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 filing of the proposed rule change, or 

such shorter time as designated by the Commission. 

The Commission is waiving the five day written 

notice requirement in this case. Therefore, the 

Commission notes that the Exchange has satisfied 

this requirement. 

19For 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). 

20 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

Exchange believes that the proposed 

rule meets these requirements in that it 

promotes transparency and uniformity 

across markets concerning decisions to 

break erroneous trades, yet also ensures 

fair application of the process so that 

similarly situated member organizations 

are provided the same opportunity of a 

clearly erroneous review. The Exchange 

notes that the changes proposed herein 

will in no way interfere with the 

operation of the Pause Pilot process, as 

amended. 

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 

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; and (iii) become 

operative for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 17 and Rule 19b– 

4(f)(6)(iii) thereunder.18 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 believes that waiving the 

30-day operative delay is consistent 

with the protection of investors and the 

public interest because such waiver will 

allow the clearly erroneous rules to 

continue to operate as they did prior to 

the effectiveness of the Pause Pilot 

expansion to Phase III Securities so that 

similarly situated member organizations 

are provided the same opportunity of a 

clearly erroneous review. Accordingly, 

the Commission waives the 30-day 

operative delay requirement and 

designates the proposed rule change as 

operative upon filing with the 

Commission.19

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. 

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 rule-comments@

sec.gov. Please include File Number SR– 

NYSE–2011–42 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–NYSE–2011–42. 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, 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 NYSE. 

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 publicly available. All 

submissions should refer to File 

Number SR–NYSE–2011–42 and should 

be submitted on or before September 9, 

2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–21257 Filed 8–18–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–65135; File No. SR–Phlx– 

2011–111] 

Self-Regulatory Organizations; 

NASDAQ OMX PHLX LLC; Notice of 

Filing of Proposed Rule Change 

Requesting Permanent Approval of 

Pilot Program to Permit NASDAQ OMX 

PHLX to Receive Inbound Routes by 

Nasdaq Options Services 

August 15, 2011. 

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 August 8, 

2011, NASDAQ OMX PHLX LLC 

(‘‘Phlx’’ or the ‘‘Exchange’’) filed with 

the Securities and Exchange 

Commission (q‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to request 

permanent approval of the Exchange’s 

pilot program allowing Phlx to accept 

inbound routes by NASDAQ Options 

Services, LLC (‘‘NOS’’) of 1) NASDAQ 

Options Market (‘‘NOM’’) Exchange 

Direct Orders without checking the 

NOM book and 2) NOM non-system 


jlentini on DSK4TPTVN1PROD with NOTICES