[Federal Register Volume 76, Number 159 (Wednesday, August 17, 2011)]
[Notices]
[Pages 51105-51108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20908]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65107; File No. SR-NYSEArca-2011-58]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca 
Equities Rule 7.10 So That Clearly Erroneous Executions Involving 
Securities Recently Added to the Individual Security Trading Pause 
Pilot Under NYSE Arca Equities Rule 7.11 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 19-4 thereunder,\3\ notice is hereby 
given that, on August 9, 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 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 240.199-4.
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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 7.10 so that 
clearly erroneous executions involving securities recently added to the 
individual security trading pause pilot under NYSE Arca Equities Rule 
7.11 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.

[[Page 51106]]

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 Arca Equities Rule 7.10 so that 
clearly erroneous executions involving securities recently added to the 
individual security trading pause pilot under NYSE Arca Equities Rule 
7.11 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'').
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    \4\ For 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.
    \5\ See NYSE Arca Equities Rule 7.11. The pauses under NYSE Arca 
Equities Rule 7.11 occur when a security's price moves by the 
applicable percentage within a five minute period between 6:45 a.m. 
and 12:35 p.m. Pacific Time, 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 Arca Equities Rule 7.11(b).
    \6\ See 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).
    \7\ See, 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).
    \8\ See 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).
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    As part of the changes to the clearly erroneous process under NYSE 
Arca Equities Rule 7.10, NYSE Arca added new text to NYSE Arca Equities 
Rule 7.10(c)(4) to provide clarity in the clearly erroneous process 
when a Pause Pilot trading pause is triggered. Pursuant to NYSE Arca 
Equities Rule 7.10(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 Arca Equities Rule 7.10(c)(1).\9\ 
The Reference Price, for purposes of Rule 7.10(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 Arca Equities 
Rule 7.10(c)(4) if the transaction occurred at either three, five or 
ten percent above the Trading Pause Trigger Price.\10\
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    \9\ Pursuant to NYSE Arca Equities Rule 7.10(c)(1), during the 
Core Trading Session a security with a Reference Price of greater 
than zero and up to and 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.
    \10\ See NYSE Arca Equities Rule 7.10(c)(4).
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    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 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 Arca Equities Rule 7.11, by 
adding three new subparagraphs to Rule 7.11(a) to address the treatment 
of the Phase III Securities. The rule applicable to the original Pause 
Pilot securities was placed in new NYSE Arca Equities Rule 7.11(a)(i). 
The rules applicable to the Phase III Securities were placed in new 
NYSE Arca Equities Rule 7.11(a)(ii) and (iii). A pause under NYSE Arca 
Equities Rule 7.11(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 
Arca Equities Rule 7.11(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.
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    \11\ See 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).
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    The Exchange has submitted immediately effective proposed rule 
changes to the Commission to extend both the Pause Pilot under NYSE 
Arca Equities Rule 7.11 and the clearly erroneous execution process 
pilot under NYSE Arca Equities Rule 7.10 until January 31, 2012.\12\
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    \12\ See SR-NYSEArca-2011-55 (extending NYSE Arca Equities Rule 
7.11 pilot until January 31, 2012) and SR-NYSEArca-2011-56 
(extending NYSE Arca Equities Rule 7.10 pilot until January 31, 
2012).
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The Issue
    The recently-approved changes to the Pause Pilot will have the 
unintended effect of removing the Phase III

[[Page 51107]]

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 Arca Equities Rule 7.10(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.
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    \13\ See supra note 9.
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    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 five minute period. As a 
result, an ETP Holder 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 ETP Holder 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 Arca Equities Rule 7.10(c)(1), would not be able 
to avail themselves of the clearly erroneous process. Another ETP 
Holder 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 Arca Equities Rule 
7.10(c)(1)-(3).
    Applying the clearly erroneous process under NYSE Arca Equities 
Rule 7.10(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 five minute 
period. For example, an ETP Holder that trades in a security subject to 
NYSE Arca Equities Rule 7.11(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 Arca Equities Rule 7.10(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 ETP Holder 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 ETP Holders 
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 Arca Equities Rule 7.10(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 ETP Holders 
would not be provided relief under the clearly erroneous rules merely 
due to the imposition of a Pause Pilot halt, notwithstanding that other 
ETP Holders with transactions that occur at the same rolling five 
minute percentage difference. The Exchange believes a better outcome is 
to afford all ETP Holders 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 Arca Equities Rule 7.10(c)(1)-(4) to specify that NYSE Arca 
Equities Rule 7.10(c)(4) applies only to the current securities of the 
Pause Pilot, as found under NYSE Arca Equities Rule 7.11(a)(i).\14\
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    \14\ NYSE Arca notes that the Exchanges are filing similar 
proposals to make the changes proposed herein.
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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) of the 
Act \16\ 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 decisions to break erroneous 
trades, yet also ensures fair application of the process so that 
similarly situated ETP Holders 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.
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    \15\ 15 U.S.C. 78f(b)(5).
    \16\ 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

    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

[[Page 51108]]

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 ETP Holders 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\
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    \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.
    \19\ 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.

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

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#f082859c95dd939f9d9d959e8483b0839593de979f86"><span class="__cf_email__" data-cfemail="493b3c252c642a2624242c273d3a093a2c2a672e263f">[email protected]</span></a>. Please include 
File Number SR-NYSEArca-2011-58 on the subject line.

Paper Comments

    <bullet> 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-2011-58. 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 
Arca. 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-
NYSEArca-2011-58 and should be submitted on or before September 7, 
2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-20908 Filed 8-16-11; 8:45 am]
BILLING CODE 8011-01-P


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