[Federal Register Volume 74, Number 220 (Tuesday, November 17, 2009)]
[Notices]
[Pages 59299-59308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27503]



[[Page 59299]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60974; File No. SR-NYSE-2009-111]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by New York Stock Exchange LLC Amending NYSE Rule 123C to Modify 
the Procedures for Its Closing Process and Making Conforming Changes to 
NYSE Rules 13 and 15

November 9, 2009.
    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 November 9, 2009, the New York Stock Exchange LLC (``NYSE'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 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 amendments to NYSE Rule 123C (Market On The 
Close Policy And Expiration Procedures) to modify the procedures for 
its closing process; and make conforming changes to NYSE Rules 13 
(``Definitions of Orders'') and Rule 15. (``Pre-Opening Indications''). 
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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In October 2008, the NYSE implemented sweeping changes to its 
market rules and execution technology that were designed to improve 
execution quality on the Exchange. Among the elements of the enhanced 
Exchange market model, the NYSE eliminated the function of specialists 
on the Exchange by creating a new category of market participant, the 
Designated Market Maker or DMM. The DMMs, like specialists, have 
affirmative obligations to make an orderly market in assigned 
securities, including continuous quoting requirements and obligations 
to re-enter the market when reaching across to execute against trading 
interest. The NYSE also recognized that in view of the NYSE's 
electronic execution functionality, the DMM, unlike the specialist, 
would no longer be deemed the agent for every incoming order. The NYSE 
also responded to customer demand and created new order types to 
represent additional undisplayed reserve interest.
    The NYSE has also focused on streamlining and improving efficiency 
of its closing process by implementing a single print close,\3\ 
activating systemic compliance filters for market at-the-close 
(``MOC'') and limit at-the-close (``LOC'') orders and enhancing the 
transparency of its informational data feed for imbalances by including 
d-Quotes \4\ and all other e-Quotes \5\ containing pegging instructions 
eligible to participate in the closing transaction in the NYSE Order 
Imbalance Information datafeed.\6\ In continuing the enhancements to 
the Exchange's market model, the Exchange seeks to amend NYSE Rule 123C 
to streamline the closing process, enhance transparency on the close 
\7\ and allow for greater customer participation when there is an 
imbalance in a security prior to the closing transaction. Specifically, 
the Exchange proposes to amend NYSE Rule 123C to: (i) Extend the time 
for the entry of MOC and LOC orders \8\ from 3:40 p.m. to 3:45 p.m.; 
(ii) amend the procedures for the entry of MOC/LOC orders in response 
to imbalance publications and regulatory trading halts; (iii) change to 
the cancellation time for MOC/LOC orders to 3:58 p.m.; (iv) require 
only one mandatory imbalance publication; (v) rescind the provisions 
governing Expiration Friday Auxiliary Procedures for the Opening and 
Due Diligence Requirements; (vi) modify the dissemination of Order 
Imbalance Information pursuant to NYSE Rule 123C(6) to commence at 3:45 
p.m.; (vii) include additional information in both the pre-opening and 
pre-closing Order Imbalance Information data feeds; (viii) amend NYSE 
Rule 13 to create a conditional-instruction limit order type called the 
Closing Offset Order (``CO order''), which may only be used to offset 
an existing imbalance of orders on the close; (ix) delete the ``At the 
Close'' order type from NYSE Rule 13 and replace it with the specific 
definitions of MOC and LOC orders; and (x) codify the hierarchy of 
allocation of interest in the closing transaction in NYSE Rule 123(C).
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    \3\ See Securities Exchange [sic] Release No. 59345 (February 3, 
2009), 74 FR 6444 (February 9, 2009) (SR-NYSE-2009-10).
    \4\ See NYSE Rule 70, Supplementary Material .25.
    \5\ See NYSE Rule 70(a).
    \6\ See Securities Exchange [sic] Release No. 60153 (June 19, 
2009), 74 FR 30656 (June 26, 2009) (SR-NYSE-2009-49).
    \7\ Conforming changes related to the information disseminated 
prior to the opening transaction are also proposed in this filing.
    \8\ In the NYSE Rules and for the purposes of this discussion, 
the terms ``market-on-close'' and ``limit-on-close'' are used 
interchangeably with ``market-at-the-close'' and ``limit-at-the-
close''.
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    The Exchange notes that similar changes are proposed to the rules 
of its affiliate, NYSE Amex LLC.\9\
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    \9\ See SR-NYSEAmex-2009-81.
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Current Closing Procedures

    NYSE Rule 123C prescribes, inter alia, the procedure for the entry 
and execution of MOC and marketable LOC orders and the determination of 
the closing print(s) to be reported to the Consolidated Tape for each 
security at the close of trading.
    Pursuant to NYSE Rule 123C market participants may enter an MOC 
order for execution as part of the closing transaction at the price of 
the close.\10\ Similar to a market order, an MOC order is to be 
executed in its entirety at the closing price; however, if the order is 
not executed as a result of a trading halt or because of its terms 
(e.g., buy minus or sell plus), the MOC order is cancelled.\11\
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    \10\ See NYSE Rule 123C(1).
    \11\ See Id.
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    Market participants that seek to have their orders executed on the 
close but are sensitive to price, may pursuant to NYSE Rule 123C, enter 
LOC orders that will be eligible for execution in the closing 
transaction, provided that the closing price is at or within the limit 
specified.\12\ An LOC order is not guaranteed an execution in the 
closing

[[Page 59300]]

transaction; rather, only an LOC order with a limit price that is 
better \13\ than the closing price is guaranteed an execution.\14\ An 
LOC order limited at the closing price is sequenced with other LOC 
orders on the NYSE Display Book[reg] \15\ (``Display Book'') in time 
priority of receipt in Exchange systems and is available for execution 
after all other orders on the Display Book at the closing price are 
executed, regardless of when such other orders are received.\16\
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    \12\ See NYSE Rule 123C(2).
    \13\ As used herein, ``better priced than the closing price'' 
means an order that is lower than the closing price in the case of 
an order to sell or higher than the closing price in the case of an 
order to buy.
    \14\ It should be noted that orders are cancelled if there is a 
trading halt in the security that is not lifted prior to the close 
of trading.
    \15\ The Display Book system is an order management and 
execution facility. The Display Book system receives and displays 
orders to the DMM, contains order information, and provides a 
mechanism to execute and report transactions and publish results to 
the Consolidated Tape. The Display Book system is connected to a 
number of other Exchange systems for the purposes of comparison, 
surveillance, and reporting information to customers and other 
market data and national market systems.
    \16\ See NYSE Rule 123C(2).
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    NYSE Rule 123C(1) and (2) require that all MOC and LOC orders be 
entered by 3:40 p.m. in any stock on any trading day, unless entered to 
offset a published imbalance, or on either side of the market if a 
regulatory halt is in effect at 3:40 p.m. or occurs after that time. 
Pursuant to NYSE Rule 123C, between 3:40 and 3:50 p.m., MOC/LOC orders 
are irrevocable, except to correct a legitimate error (e.g., side, 
size, symbol, price, or duplication of an order) or when a regulatory 
trading halt is in effect \17\ at or after 3:40 p.m. During normal 
trading conditions, cancellations or reductions in the size of a MOC/
LOC orders after 3:50 p.m. are not permitted for any reason, even in 
the case of legitimate error, except as provided in NYSE Rule 
123C(8)(a)(2). Currently, NYSE Rule 123C(8) allows the Exchange to 
temporarily suspend certain requirements related to the closing of 
securities, provided certain conditions are met.\18\ If a suspension is 
invoked in a security pursuant to NYSE Rule 123C(8)(a)(2), MOC/LOC 
interest may be cancelled or reduced after 3:50 p.m.\19\
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    \17\ In the case of a regulatory halt, MOC orders may be entered 
until 3:50 p.m. or until the stock reopens, whichever occurs first, 
even if an imbalance publication occurred prior to the regulatory 
halt.
    \18\ See Securities Exchange [sic] Release No. 59755 (April 13, 
2009), 74 FR 18009 (April 20, 2009) (SR-NYSE-2009-18) (approving the 
ability of the Exchange to temporarily suspend certain requirements 
related to the closing of securities on the Exchange with the 
provisions of NYSE Rule 123(C)(8)(a)(1) operating as a pilot 
scheduled to end on October 12, 2009); See also Securities Exchange 
[sic] Release No. 60809. (October 9, 2009), 74 FR 53532 (October 19, 
2009) (SR-NYSE-2009-104) (extending the Exchange ability to 
temporarily suspend certain requirements related to the closing of 
securities on the Exchange with the provisions of NYSE Amex Equities 
[sic] Rule 123(C)(8)(a)(1) operating as a pilot scheduled to end on 
December 31, 2009). Pursuant to 123C(8), to avoid closing price 
dislocation that may result from an order entered into Exchange 
systems or represented to a DMM orally at or near the close, the 
Exchange may temporarily suspend the hours during which the Exchange 
is open for the transaction of business pursuant to NYSE Rule 52. A 
determination to declare such a temporary suspension is made on a 
security-by-security basis. The determination, as well as any entry 
or cancellation of orders or closing of a security pursuant to NYSE 
Rule 123C(8)(a) must be supervised and approved by either an 
Executive Floor Governor or a qualified NYSE Euronext employee, as 
defined under NYSE Rule 46(b)(v), and supervised by a qualified 
Exchange Officer, as defined in NYSE Rule 48(d).
    \19\ Pursuant to NYSE Rule 123C(8)(a)(2), with approval of an 
Executive Floor Governor or a qualified NYSE Euronext employee, MOC/
LOC orders may be cancelled or reduced if:
    (i) The cancellation or reduction is necessary to correct a 
legitimate error; and
    (ii) (ii) [sic] Execution of such an MOC or LOC order would 
cause significant price dislocation at the close.
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    Exchange systems calculate imbalance of MOC and marketable LOC 
orders (i.e., more shares to buy than sell or vice versa) by netting 
the aggregate amount of MOC shares and marketable LOC buy orders 
against the aggregate amount of MOC shares and marketable LOC sell 
orders.\20\
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    \20\ See NYSE Rules 116.40(B) and 123C(3)(A).
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    Between 3:00 p.m. and 3:40 p.m., if there is an imbalance of MOC/
LOC orders, a DMM who has received Floor Official approval may publish 
an imbalance of any size (``Informational Balance''). If the DMM 
publishes an Informational Imbalance and at 3:40 p.m. there exists an 
imbalance of 50,000 shares or more, or any other significant imbalance, 
the DMM must publish that updated imbalance information as soon as 
possible after 3:40 p.m. If there is neither a significant imbalance 
nor one of 50,000 shares or more, the DMM is required to publish a ``no 
imbalance'' message if an Informational Imbalance was published. If the 
DMM publishes a ``no imbalance'' message at 3:40 p.m. and a significant 
imbalance or one of 50,000 shares or more occurs between 3:40 and 3:50 
p.m., then the DMM must publish the imbalance information as soon as 
possible after 3:50 p.m.
    In the absence of an Informational Imbalance publication, if at 
3:40 p.m. there is an imbalance of 50,000 shares or more of MOC/LOC 
orders, the DMM is required to publish the imbalance information to the 
Consolidated Tape in order to solicit contra-side interest.\21\ The 
published imbalance information must be updated again at 3:50 p.m. with 
the current numerical imbalance or a no imbalance message.\22\
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    \21\ See NYSE Rule 123C(1), (2) and (5). Imbalance publications 
pursuant to these provisions of the rule are interpreted as the 
mandatory publications.
    \22\ At 3:50 p.m., a ``no imbalance message'' indicates that the 
subsequent imbalance of shares, is less than 50,000 shares and is 
not significant in relation to the average daily trading volume in 
the security.
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    NYSE Rule 123C(6) further allows Exchange systems to disseminate a 
data feed of real-time order imbalances that accumulate prior to the 
close of trading on the Exchange (``Order Imbalance Information'').\23\ 
Order Imbalance Information is supplemental information disseminated by 
the Exchange prior to a closing transaction.\24\ Specifically, Order 
Imbalance Information is disseminated every fifteen seconds between 
3:40 p.m. and 3:50 p.m.; thereafter, it is disseminated every five 
seconds between 3:50 p.m. and 4 p.m.\25\
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    \23\ See Securities Exchange [sic] Release Nos. 57862 (May 23, 
2008), 73 FR 31174 (May 30, 2008) (SR-NYSE-2008-41) and 57861 (May 
23, 2008), 73 FR 31905 (June 4, 2008) (SR-NYSE-2008-42). The text of 
NYSE Rule 123C(6) (to be entitled proposed NYSE Rule 123C paragraphs 
(1)(g) (Definition: Order Imbalance Information) and (6) 
(Publication of Order Imbalance Information) was not changed in this 
rule filing.
    \24\ See NYSE Rule 123C(6). Pursuant to NYSE Rule 15, the 
Exchange also distributes information about imbalances in real-time 
at specified intervals prior to the opening transaction. The pre-
opening Order Imbalance Information data feed is disseminated (i) 
every five minutes between 8:30 a.m. and 9 a.m.; (ii) every one 
minute between 9 a.m. and 9:20 a.m.; and (iii) every 15 seconds 
between 9:20 a.m. and the opening (or 9:35 a.m. if the opening is 
delayed).
    \25\ On any day that the scheduled close of trading on the 
Exchange is earlier than 4 p.m., the dissemination of Order 
Imbalance Information prior to the closing transaction will commence 
20 minutes before the scheduled closing time. Order Imbalance 
Information will be disseminated every fifteen seconds for 
approximately 10 minutes. Thereafter, the Order Imbalance 
Information will be disseminated ever [sic] five seconds until the 
scheduled closing time.
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    The mandatory publications are included in both the Order Imbalance 
Information data feed and on the Consolidated Tape. In addition, 
commencing at 3:55 p.m., the Order Imbalance Information data feed also 
includes d-Quotes \26\ and all other e-Quotes \27\ containing pegging

[[Page 59301]]

instructions \28\ eligible to participate in the closing 
transaction.\29\
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    \26\ This type of Floor broker agency interest contains 
discretionary instructions as to size and/or price of an e-Quote. 
See NYSE Rule 70 Supplementary Material .25.
    \27\ Floor brokers are permitted to represent orders 
electronically through the use of e-Quotes. See NYSE Rule 70(a)(i).
    \28\ This type of Floor broker agency interest contains a 
distinct instruction that may be used in conjunction with an e-Quote 
and/or a d-Quote. See NYSE Rule 70, Supplementary Material .26. This 
type of instruction allows the Floor broker to maintain his/her 
interest in the Exchange Best Bid or Offer (``BBO'') if the quote 
moves from the orders initial quote price. Pegged interest moves 
with the Exchange BBO within the designated range. Any discretionary 
instructions associated with that interest will continue to be 
applied as long as it is within the Floor broker's designated price 
range. Buy side e-Quotes will peg to the best bid and sell side e-
Quotes will peg to the best offer. The Exchange filed a proposal 
with the SEC to amend NYSE Rule 70.25 to permit d-Quotes to be 
active throughout the trading day and to provide for discretionary 
instructions that a d-Quote will execute only if a minimum trade 
size (``MTS'') requirement is met, and to amend NYSE Rule 70.26 to 
provide for e-Quotes and d-Quotes to peg to the National best bid or 
offer (``NBBO'') rather than the Exchange best bid or offer 
(``BBO''). See Securities and Exchange [sic] Release No. 60888 
(October 27, 2009), 74 FR 56902 (November 3, 2009) (SR-NYSE-2009-
106).
    \29\ Similarly, in the case of the pre-opening Order Imbalance 
Information data feed, all interest eligible to trade in the opening 
transaction, excluding odd-lot orders and the odd-lot portion of 
partial round-lot orders, are included in the data feed. Floor 
broker interest includes all interest except non-displayed reserve 
interest marked do not display. Customer interest includes all 
interest except for non-displayed reserve interest. DMM interest is 
not included in the pre-opening Order Imbalance Information data 
feed.
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    The Order Imbalance Information data feed prior to the close 
calculates the reference price, when the last sale price does not fall 
within the best bid and the best offer on the Exchange at the time that 
the Exchange calculates a closing imbalance for a security,\30\ as 
follows:
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    \30\ The reference price for the pre-opening Order Imbalance 
Information data feed is equal the last sale (previous closing 
price) or the price indication published under the Rule 15 or 123D. 
Therefore, when the Exchange publishes a pre-opening indication in a 
security pursuant to the provisions of paragraphs (a) and (b) of 
NYSE Rule 15 or NYSE Rule 123D, the reference price will be 
determined as follows:
    If the Bid Price from the indication (the lower price) is higher 
than the last sale, the Reference Price will be the Bid.
    If the Offer Price from the indication (the higher price) is 
lower than the last sale, the Reference Price will be the Offer.
    If the Last Sale is within the indication range, the Book will 
use the Last Sale as the Reference Price.
    If multiple indications have been published, the last indication 
that the Exchange makes available will be used as the Reference 
Price.
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     If the last sale price is lower than the Bid price, then 
the Bid Price will serve as the Reference Price.
     If the last sale price is higher than the Offer price, 
then the Offer Price will serve as the Reference Price.
     If the last sale price falls within the Exchange's best 
bid and offer for the security, the last sale price will serve as the 
Reference Price.
    Examples:
    (1) The sale in XYZ security prior to the dissemination of the 
order imbalance feed was at a price of $15.00. The quote prior to the 
dissemination of the data feed is 100 shares bid at a price of $15.02 
and 500 shares offered at a $15.20. The reference price for the NYSE 
Order Imbalance data feed in XYZ security will be $15.02.
    (2) The sale in XYZ security prior to the dissemination of the 
order imbalance feed was at a price of $15.00. The quote prior to the 
dissemination of the data feed is 100 shares bid at a price of $14.91 
and 500 shares offered at a $14.99. The reference price for the NYSE 
Order Imbalance data feed in XYZ security will be $14.99.
    (3) The sale in XYZ security prior to the dissemination of the 
order imbalance feed was at a price of $15.00. The quote prior to the 
dissemination of the data feed is 100 shares bid at a price of $14.98 
and 500 shares offered at a $15.02. The reference price for the NYSE 
Order Imbalance data feed in XYZ security will be $15.00.
    Only the mandatory indications published pursuant to NYSE Rule 
123C(1) control whether a party may enter MOC/LOC interest to offset an 
imbalance publication.
    In executing the closing transaction, Exchange systems calculate 
the shares of MOC and marketable LOC orders on each side of the market. 
Where there is an imbalance, the shares constituting the imbalance are 
executed against the offer side (in case of a buy imbalance) or the bid 
side (in the case of a sell imbalance).\31\ The remaining MOC and 
marketable LOC buy and sell orders are paired off against each other at 
the price at which the imbalance shares were executed.\32\ The 
imbalance and the pair off transaction are reported to the Consolidated 
Tape as a single transaction.\33\
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    \31\ See NYSE Rules 123C(3) and 116.40(B).
    \32\ See NYSE Rules 123C(3).
    \33\ See NYSE Rules 123C(3) and 116.40(C).
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    If there is no imbalance, the aggregate buy and sell MOC and 
marketable LOC orders are paired off at the price of the last sale on 
the Exchange prior to the close of trading in the security.\34\ This 
transaction is reported to the Consolidated Tape as a single 
transaction.\35\
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    \34\ See NYSE Rules 116.40(C) and 123C(3)(B).
    \35\ See Id.
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    Any stop orders that are elected by the closing price in a 
particular security are automatically and systemically converted into 
market orders and are included in the total number of MOC orders to be 
executed at the close for that security.\36\
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    \36\ See NYSE Rules 116.40(A) and 123C(3)(A).
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    Interest executed in the closing transaction is allocated pursuant 
to NYSE Rule 72 (``Priority of Bids and Offers and Allocation of 
Executions'') and consistent with the hierarchy of interest which 
currently is only codified in the NYSE Floor Official Manual.\37\ In 
the hierarchy of allocation, better priced interest must receive an 
execution in whole or in part \38\ (``must execute interest'') in order 
for the security to close. Included in this category are MOC orders 
without tick restrictions, MOC orders with tick restrictions that are 
eligible to be executed at a price better than the closing price, 
better priced limit orders, better priced LOC orders with or without 
tick restrictions that are eligible for execution at a better price 
than the closing price and Crowd interest.\39\ After the ``must execute 
interest'' is satisfied, then any limit orders represented in Display 
Book at the closing price may be used to offset the remaining 
imbalance. It should be noted that DMM interest, including better 
priced DMM interest entered into the Display Book prior to the closing 
transaction, eligible to participate in the closing transaction is 
always included in the hierarchy of execution as if it were interest 
equal to the price of the closing transaction. Next eligible for 
execution in the hierarchy of allocation for the closing transaction 
are LOC orders without tick restrictions limited to the closing price, 
then MOC orders that have tick restrictions which limit the order's 
price to the price of the closing transaction,\40\ followed by LOC 
orders limited to the price of the closing transaction that have tick 
restrictions and finally ``G'' orders,\41\ including all better priced 
``G'' orders.
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    \37\ See New York Stock Exchange Inc., Floor Official Manual, 
214-215 (June 2004 Edition). The Exchange ceased publication of the 
Floor Official Manual after this edition. The proposed amendments 
herein seek to add transparency to the closing process and will 
incorporate the hierarchy of allocation into the proposed rule text.
    \38\ MOC orders must be executed in its entirety at the closing 
price. Marketable limit orders receive an execution subject to the 
availability of contra side volume.
    \39\ As used herein, Crowd interest means verbal Floor broker 
interest at the market entered by the DMM to interact with orders in 
the Display Book.
    \40\ For example, the last sale on the Exchange was at a price 
of $46.00 on a minus tick, the closing price is $46.01, all sell 
plus MOC orders are limited to the closing price of $46.01 because 
the closing transaction would be the next plus tick.
    \41\ Section 11(a)(1) of the Act generally prohibits a member of 
a national securities exchange from effecting transactions on that 
exchange for its own account, the account of an associated person, 
or any account over which it or an associated person exercises 
discretion. See 15 U.S.C. 78k(a)(1). Subsection (G) of Section 
11(a)(1) provides an exemption allowing an exchange member to have 
its own floor broker execute a proprietary transaction (``G 
order''). A g-Quote is an electronic method for Floor brokers to 
represent G orders. G orders on NYSE yield priority, and parity to 
all other non-G orders.

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[[Page 59302]]

    Once the last sale in the security occurs, the DMM organizes the 
closing transaction by considering Crowd interest, interest available 
to participate on the close and his own trading interest (consistent 
with affirmative obligations).\42\ Pursuant to the DMM's affirmative 
obligation, the DMM should minimize price dislocation caused by 
disparity between supply and demand. At that point, he or she must 
assess potential imbalances (if any) at various potential closing price 
points in order to price the close. The DMM will generally close the 
security by picking a price point that he or she believes is an 
appropriate price based on supply and demand and may insert DMM trading 
interest.
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    \42\ DMMs [sic] trading interest is determined in part by risk 
management goals. DMMs may manage risk by trading on the same side 
of the imbalance if consistent with his or her affirmative 
obligation under NYSE Rule 104 and other NYSE and SEC rules. If the 
DMM participates on the same side of an order imbalance in a 
security such that the price of the security moves significantly, 
this may raise a concern as to whether the DMM is meeting his or her 
affirmative obligation and other regulatory requirements.
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Example of a Current Close Including the Imbalance Publications

Example 1

    XYZ security has an average daily trading volume of approximately 
450,000 shares. At 3:10 p.m. XYZ receives a buy MOC order for 45,000 
shares. Shortly thereafter, in consultation with a Floor Official, the 
DMM publishes an Informational Imbalance. By 3:40 p.m. the buy 
imbalance has increased to 150,000 shares and the DMM disseminates a 
mandatory imbalance publication showing the updated amount. Also at 
3:40 the Order Imbalance Information data feed commences and is 
disseminated every 15 seconds thereafter.
    By 3:50 p.m. the DMM has received 50,000 shares of sell MOC 
interest to offset the 150,000 share buy imbalance. At 3:50 p.m. the 
DMM disseminates another mandatory imbalance publication updating the 
imbalance to a 100,000 share buy imbalance.
    Also at 3:50 the Order Imbalance information data feed increases 
the frequency of its publications to every 5 seconds. Beginning at 3:55 
p.m. the Order Imbalance data feed includes d-Quotes and all other e-
Quotes containing pegging instructions that are eligible to participate 
in the closing transaction based on current execution prices.
    The DMM did not receive any additional offsetting interest between 
3:50 and 4 p.m. (official closing time) so the imbalance remained at 
100,000 shares to buy.
    The last bid in XYZ security prior to the closing transaction was 
$19.85 and the offer was $20.00. The last sale prior to 4 p.m. 
(official closing time) was at $19.85.
    The sell interest on the Display Book leading into the closing 
transaction consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of public limit orders at $20.24;
    4. 10,000 shares of tick sensitive LOC interest at $20.24;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    6. 40,000 shares LOC interest at $20.25;
    7. 10,000 shares of non-MOC ``G'' market orders.
    Given this interest available in Display Book, the DMM determines 
to close trading in XYZ security at a price of $20.25 and to sell 
10,000 shares for the dealer account. The DMM interest is entered into 
the Display Book while the DMM is arranging the closing transaction 
which may be after 4:00 p.m. The DMM then executes the closing 
transaction in XYZ security at the price of $20.25.
    The closing execution logic is as follows:\43\
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    \43\ The execution occurs as a single transaction. The logic 
described in the text refers to how the Display book allocates 
shares, not the order of execution.
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    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares.
    The remaining imbalance of 100,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.25. As 
interest priced better than the closing price, numbers 1-5 below are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 95,000 share buy 
imbalance;
    2. 5,000 shares of Crowd market interest which leaves a 90,000 
share buy imbalance;
    3. 10,000 shares of public limit orders at $20.24, which leaves an 
80,000 share buy imbalance; and [sic]
    4. 10,000 shares of tick sensitive LOC interest at $20.24 which 
leaves a 70,000 share buy imbalance;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 60,000 share buy imbalance; \44\
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    \44\ Any super-marketable d-Quote interest that exercises its 
maximum discretion becomes better priced limit interest for the 
purposes of the hierarchy of execution and is included in the 
closing transaction as must execute interest.
---------------------------------------------------------------------------

    The remaining 60,000 share buy imbalance will be offset at the 
price of $20.25 as follows:
    6. 10,000 shares of DMM interest, which leaves a 50,000 share buy 
imbalance;
    7. 40,000 shares LOC interest at $20.25, which leaves a 10,000 
share buy imbalance; and
    8. 10,000 shares of non-MOC ``G'' orders.
    Example number 1 above is a simple closing transaction that 
demonstrates all interest eligible to receive an execution in the 
closing transaction being executed in full. In the above example, the 
offsetting interest was equal to the size of the actual buy imbalance; 
however, in the event that any one type of offsetting interest with 
precedence in the hierarchy is sufficient to fill the imbalance, that 
interest will be filled and the remaining interest lower in the 
hierarchy will receive a report of ``nothing done.'' Example number 2 
below demonstrates this principle and further illustrates the operation 
of parity allocations in the closing transactions.

Example 2

    Assuming the same imbalance publication information and receipt of 
offsetting interest in Example 1. The last sale in the 
security is at the price of $19.85. Again, the offsetting sell MOC 
interest is of 50,000 shares is netted against 50,000 shares of the 
150,000 shares of the buy imbalance at a price of $20.25, leaving a buy 
imbalance of 100,000 shares. The sell interest on the Display Book now 
consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of tick sensitive LOC interest at $20.24;
    4. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    5. 20,000 shares e-Quote interest from a single Floor broker at 
$20.25;
    6. 50,000 shares of public limit orders at $20.25;
    7. 40,000 shares LOC interest at $20.25;

[[Page 59303]]

    8. 10,000 shares of non-MOC ``G'' market orders.
    Given this interest available in Display Book, the DMM determines 
to close trading in XYZ security at a price of $20.25 and to sell 
50,000 shares for the dealer account. The DMM interest is entered into 
the Display Book while the DMM is arranging the closing transaction 
which may be after 4:00 p.m. The DMM then executes the closing 
transaction in XYZ security at the price of $20.25.
    The closing execution logic is as follows:
    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares.
    The remaining imbalance of 100,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.25. As 
interest priced better than the closing price, numbers 1-4 below are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 95,000 share buy 
imbalance;
    2. 5,000 shares of Crowd market interest, which leaves a 90,000 
share buy imbalance;
    3. 10,000 shares of tick sensitive LOC interest at $20.24, which 
leaves an 80,000 share buy imbalance;
    4. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 70,000 shares buy imbalance;
    The remaining 70,000 shares of the buy imbalance will be offset at 
the price of $20.25 as follows:
    5. 20,000 shares of e-Quote interest at $20.25, which leaves a 
50,000 share buy imbalance;
    6. 25,000 shares of at-priced DMM interest, which leaves a 25,000 
shares buy imbalance;
    7. 25,000 shares of public limit orders at $20.25, which fills the 
remaining 25,000 shares of the imbalance.
    The remaining 25,000 shares of at-priced DMM interest and the 
25,000 shares of public limit orders at $20.25 will not be 
executed.\45\ Additionally, the 40,000 shares LOC interest priced at 
$20.25 and 10,000 shares of ``G'' orders will also remain unexecuted 
and receive reports of ``nothing done.'' \46\
---------------------------------------------------------------------------

    \45\ Interest represented in numbers 5-7 received an allocation 
of shares that is less than their full quantity consistent with NYSE 
Rule 72 which requires the shares to be allocated on a parity basis. 
Specifically, DMM interests, individual e-Quotes interests and 
public limit order interests each represent a distinct parity group 
which and the available shares are divided among the parity groups.
    \46\ DMM interest is considered at price interest and is 
therefore higher in the hierarchy of execution than at priced LOC 
interest which are not guaranteed an execution pursuant to the 
provisions of 123C(2). It should be noted that DMM interest 
participating in the closing transaction is executed as if it were 
priced equal to the closing transaction. This includes DMM interest 
entered in Display Book prior to the closing transaction at better 
price points that are eligible to participate in the closing 
transaction.
---------------------------------------------------------------------------

Example 3

    Example 3 further illustrates a DMMM [sic] facilitation of 
the closing transaction and demonstrates that the DMM may enter his or 
her interest on the same side of the MOC/LOC imbalance when effecting 
the closing transaction.
    Assuming the same imbalance publication information and receipt of 
offsetting interest in Example 1. The last sale in the 
security in this Example 3 is at the price of $20.23. Again, 
the offsetting sell MOC interest is of 50,000 shares is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares. The sell interest on 
the Display Book now consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of tick sensitive LOC interest at $20.24;
    4. 50,000 shares of public limit orders at $20.25;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    6. 20,000 shares of LOC interest at $20.25.
    In addition, while arranging the closing transaction after 4:00 
p.m. the DMM enters 20,000 shares of DMM interest to buy for the dealer 
account.\47\ There is additional sell interest on the Display Book that 
would accommodate the DMM's additional interest as follows:
---------------------------------------------------------------------------

    \47\ See supra note 42. As previously noted DMM trading must be 
consistent with his or her affirmative obligation under NYSE Rule 
104 and other NYSE and SEC rules particularly in this example where 
the DMM is participating on the same side of the imbalance.
---------------------------------------------------------------------------

    7. 10,000 shares of public limit orders to sell at $20.26;
    8. 10,000 shares of public limit orders to sell at $20.27;
    Based on the interest available in Display Book on both sides of 
the market, the DMM has determined to close trading in XYZ security at 
a price of $20.27.
    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the current 170,000 shares of the buy imbalance at a 
price of $20.27, leaving a buy imbalance of 120,000 shares (including 
DMM interest).
    The remaining imbalance of 120,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.27. As 
interest priced better than the closing price, numbers 1-7 below are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 115,000 share buy 
imbalance;
    2. 5,000 shares of Crowd Market interest, which leaves a 110,000 
share buy imbalance;
    3. 10,000 shares of tick sensitive LOC interest at $20.24, which 
leaves an 100,000 share buy imbalance;
    4. 50,000 shares of public limit orders at $20.25, which leaves a 
50,000 share buy imbalance;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 40,000 share buy imbalance;
    6. 20,000 shares LOC interest at $20.25, which leaves a 20,000 
share buy imbalance;
    7. 10,000 shares of public limit orders at $20.26, which leaves a 
10,000 share buy imbalance; and
    8. 10,000 shares of public limit orders at $20.27 are executed 
against the remaining 10,000 share buy imbalance.

Additional Procedures Governed by NYSE Rule 123C

    In addition to current Market on the Close procedures, NYSE Rule 
123C prescribes the Expiration Friday \48\ Auxiliary Procedures for the 
Opening. The provisions of the rule govern the time of entry and the 
marking of orders related to expiring index contracts.\49\
---------------------------------------------------------------------------

    \48\ An expiration day is a trading day prior to the expiration 
of index-related derivative products (futures, options or options on 
futures), whose settlement pricing is based upon opening or closing 
prices on the Exchange, as identified by a qualified clearing 
corporation (e.g., the Options Clearing Corporation). The twelve 
expiration days are ``expiration Fridays'' which fall on the third 
Friday in every month. If that Friday is an Exchange holiday, there 
will be an expiration Thursday in such a month.
    \49\ NYSE Rule 123C(7) requires, among other things, that orders 
related to index contracts whose settlement pricing is based upon 
the ``Expiration Friday'' opening prices must be received by 9 a.m. 
Orders not related to index contracts whose settlement is not based 
on opening prices may be received before or after 9:00 a.m. It 
further requires orders relating to opening-price settling contracts 
be identified ``OPG'' and sets forth procedures for firms that are 
unable to comply with the marking requirement.

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[[Page 59304]]

Proposed New Closing Procedures 50

    The Exchange seeks to build on the changes the NYSE began this year 
as noted above, to simplify its closing procedures in order to provide 
customers with a more efficient closing process. The closing 
transaction on the Exchange continues to be a manual auction in order 
to facilitate greater price discovery and allow for the maximum 
interaction between market participants. While the Exchange currently 
provides DMM units with tools to facilitate an efficient closing 
process, the Exchange believes that changes proposed herein will 
maximize the use of those electronic tools and allow for an even more 
efficient closing process.
---------------------------------------------------------------------------

    \50\ On May 19, 2004, the Securities and Exchange Commission 
(``Commission'' or ``SEC'') approved amendments to NYSE Rule 123C, 
subject to technology upgrades to the electronic entry systems for 
MOC and LOC orders (the ``2004 Amendments''). The 2004 Amendments 
included, among other things, changes to the time of imbalance 
publications and the mechanism by which MOC and LOC orders could be 
entered. See Securities Exchange Act Release No. 49682 (May 11, 
2004), 69 FR 28969 (May 19, 2004) (SR-NYSE-2004-09).
     The Exchange continually reviewed the approved amendments in 
keeping with the evolution of its market and the technological 
upgrades required. As a result of its review the Exchange did not 
implement the approved changes; rather, in May 2008, the Exchange 
informed the Commission that it intended to formally submit the 
instant revised proposal to modify its closing procedures. See 
Securities Exchange Act Release No. 57862 (May 23, 2008), 73 FR 
31174 (May 30, 2008) (SR-NYSE-2008-41).
---------------------------------------------------------------------------

Order Entry, Cancellation, Mandatory MOC/LOC Imbalance and 
Informational Imbalance Publications

    In order to optimize the efficient operation of the closing 
process, the Exchange proposes to amend NYSE Rule 123C to require 
electronic entry of all MOC and LOC orders, including those entered to 
offset imbalances.\51\ The Exchange believes that the electronic entry 
of MOC and LOC orders will allow the DMM to maximize the Display Book 
capability to continuously update and provide the DMM and trading 
community with imbalance information, thus enhancing the DMM's ability 
to efficiently manage the closing process and customers with the 
ability to interact appropriately.
---------------------------------------------------------------------------

    \51\ In the event a Floor broker's handheld device malfunctions, 
the DMM should assist the Floor broker by entering or cancelling 
MOC/LOC orders on the Floor broker's behalf. DMMs perform this 
administrative function on a best efforts basis. See, NYSE 
Information Memos 09-26 (June 18, 2009); NYSE Member Education 
Bulletin 05-24 (December 9, 2005).
---------------------------------------------------------------------------

    The electronic entry of MOC and LOC interest will obviate the need 
to have an imbalance publication at 3:40 p.m. and 3:50 p.m. because the 
DMM will not have to manually keep track of the MOC/LOC interest; 
rather, Exchange systems will track the electronically entered MOC/LOC 
interest. Exchange systems will therefore be able to provide more 
accurate and timely imbalance information to all market participants 
systemically. The Exchange's customers have expressed that in the 
current more electronic environment two imbalance publications ten 
minutes apart are not useful. Accordingly, the Exchange proposes to 
modify the order information available prior to the closing transaction 
as described more fully below and amend NYSE Rule 123C to provide for a 
single imbalance publication as soon as practicable after 3:45 p.m., to 
be referred to as the ``Mandatory MOC/LOC Imbalance Publication,'' 
(herein ``Mandatory MOC/LOC Imbalance'') when there is an imbalance: 
(i) of 50,000 shares or more; or (ii) of less than 50,000 shares that 
is deemed to be ``significant'' \52\ (i.e., significant in relation to 
the average daily volume of the security).\53\ The last sale price at 
3:45 p.m. will serve as the basis for the Mandatory MOC/LOC Imbalance.
---------------------------------------------------------------------------

    \52\ Mandatory MOC/LOC Imbalance publications for less than 
50,000 shares may only be published with the prior approval of a 
Floor Official or qualified NYSE Euronext employee as defined in 
Supplementary Material .10 of NYSE Rule 46.
    \53\ See proposed NYSE Rule 123C paragraphs (1)(d) (Definition: 
Mandatory MOC/LOC Imbalance) and (4) Calculation of MOC Imbalances.
---------------------------------------------------------------------------

    The Exchange intends to retain the current ability to publish an 
Informational Imbalance of any size. The Exchange seeks to extend the 
time for the publication of such imbalance from 3:40 p.m. until 3:45 
p.m. in order to provide a mechanism for an imbalance publication prior 
to any Mandatory MOC/LOC Imbalance if the DMM in consultation with a 
Floor Official or qualified NYSE Euronext employee as defined in 
Supplementary Material .10 of NYSE Rule 46 deems that such imbalance 
publication is warranted for the security. In extending the time to 
3:45 p.m., the proposed rule will provide that a Mandatory MOC/LOC 
Imbalance or ``no imbalance'' notice must occur as soon as possible 
after 3:45 p.m.\54\
---------------------------------------------------------------------------

    \54\ See proposed NYSE Rule 123C paragraphs (1)(b) (Definition: 
Informational Imbalance) and (4) Calculation and Publication of MOC 
Imbalances) [sic]. In the event that an Informational Imbalance is 
disseminated prior to 3:45 and thereafter there is no Mandatory MOC/
LOC Imbalance, the DMM will be required to manual [sic] disseminate 
a ``no imbalance'' notification.
---------------------------------------------------------------------------

    The proposed new rule will further explicitly state that the entry 
of MOC/LOC orders in response to a Mandatory MOC/LOC Imbalance after 
3:45 p.m. may be entered only to offset the published imbalance.\55\ In 
the case of a ``no imbalance'' notification, no offsetting MOC/LOC 
interest may be entered at all after 3:45 p.m.\56\
---------------------------------------------------------------------------

    \55\ See proposed NYSE Rule 123C paragraphs (2)(b)(i) (Order 
entry).
    \56\ See proposed NYSE Rule 123C paragraphs (2)(b)(ii) (Order 
entry).
---------------------------------------------------------------------------

    Given that MOC/LOC orders will be entered electronically, Exchange 
systems will keep track of the available interest thus making it more 
readily available for the DMM. The Exchange therefore further proposes 
to allow customers to cancel or reduce MOC/LOC orders in the case of 
legitimate errors \57\ between 3:45 p.m. and 3:58 p.m.\58\ Systemic 
tracking of MOC/LOC interest makes it entirely feasible for the DMM to 
review in two minutes the interest eligible to participate in the 
closing transaction and facilitate the execution of the closing 
transaction. After 3:58 p.m., cancellations or reduction in the size of 
MOC/LOC orders, even in the event of legitimate error, will not be 
permitted.\59\
---------------------------------------------------------------------------

    \57\ Through the instant filing, the Exchange seeks to clarify 
what is meant by legitimate error as it applies to the closing 
process. The Exchange proposes to define a legitimate error in the 
proposed definition section of 123C. Specifically, a [sic] pursuant 
to proposed NYSE Rule 123C(1)(c), a legitimate error means an error 
in any term of an MOC or LOC order, such as price, number of shares, 
side of the transaction (buy or sell) or identification of the 
security.
    \58\ See proposed NYSE Rule 123C(3) (Cancellation of MOC and LOC 
orders). The Exchange anticipates that DMMs will have sufficient 
time to perform the requisite calculations for the closing 
transaction while affording customers the ability to cancel or 
reduce in size an MOC/LOC order until 3:58 p.m.
    \59\ Current NYSE Rule 123C(8)(a)(2) permits the Exchange to 
temporarily suspend the prohibitions on canceling or reducing an MOC 
or LOC order if there is an extreme order imbalance at or near the 
close. This filing would renumber that rule as proposed NYSE Rule 
123C(9).
---------------------------------------------------------------------------

    The Exchange further proposes to provide all market participants an 
additional method to offset a published imbalance and proposes to 
create a conditional-instruction limit-type order that will be eligible 
to participate in the closing transaction to offset an order imbalance 
at the close, the CO order. The CO order will not be guaranteed to 
participate in the closing transaction. CO orders will be eligible to 
participate in the closing transaction when there is an imbalance of 
orders to be executed on the opposite side of the market from the CO 
order and there is no other interest remaining to trade at the closing 
price. This order type must yield to all other eligible interest.
    Unlike MOC/LOC orders, CO orders may be entered on any side of the 
market at anytime prior to the close.\60\ CO orders will not be 
included in the

[[Page 59305]]

calculation of the Mandatory MOC/LOC Imbalance and Informational 
Imbalance. The Exchange proposes that the time periods to cancel a CO 
order be consistent with the cancellation requirements for MOC and LOC 
orders. As such, proposed NYSE Rule 123(C)(3) will provide that up to 
3:45 p.m., a CO order may be cancelled or reduced for any reason. 
Between 3:45 p.m. and 3:58 p.m., a CO order may be cancelled or reduced 
only in the case of a legitimate error as that term is defined by 
proposed NYSE Rule 123C(1)(c). After 3:58 p.m., a CO order, like MOC/
LOC orders, may not be cancelled for any reason.
---------------------------------------------------------------------------

    \60\ See proposed NYSE Rule 123C(2)(b)(iv).
---------------------------------------------------------------------------

    CO orders will be eligible to participate in the closing 
transaction only to offset an imbalance and do not add to or flip the 
imbalance. If there is an imbalance at the close and the price of the 
closing transaction is at or within the limit of the CO order, the CO 
order will be eligible to participate in the closing transaction, 
subject to strict time priority of receipt in Exchange systems among 
such eligible CO orders and after yielding to all other interest in the 
closing execution, including MOCs, marketable LOCs, ``G'' orders, DMM 
interest, and at-priced LOCs. CO orders deemed eligible to participate 
in the close will be executed at the price of the closing transaction. 
If the number of shares represented by CO orders is larger than the 
number of shares required to offset the imbalance, Exchange systems 
will execute only those shares of CO orders required to complete the 
execution of the imbalance in full based on the time priority of 
receipt in Exchange systems of the CO orders. CO orders therefore will 
not be allowed to swing an imbalance to the opposite side of the 
market. Accordingly, if there is a 50,000 share buy imbalance and 
100,000 shares of CO orders eligible to sell at the closing price, the 
first 50,000 shares of CO orders that were entered into Exchange 
systems throughout the trading day will participate in the closing 
transaction. The remaining 50,000 shares of CO orders will not 
participate and will be cancelled.

Modifications to Order Imbalance Information Data Feed Prior to the 
Closing and Opening Transaction

    The Exchange further proposes to modify the Order Imbalance data 
feed prior to closing transaction to commence at 3:45 p.m., the same 
time as the Mandatory MOC/LOC Imbalance. Pursuant to proposed NYSE Rule 
123C(6)(a)(iii), the Order Imbalance data feed will be disseminated 
approximately every five seconds between 3:45 p.m. and 4:00 p.m.
    Moreover, to increase transparency of order information prior to 
the execution of the closing transaction, the Exchange proposes to 
expand the order information included in the Order Imbalance 
Information data feed. Currently the pre-closing Order Imbalance 
Information data feed includes the: (i) Reference price; (ii) MOC/LOC 
imbalance and the side of the market; (iii) d-Quotes and all other e-
Quotes containing pegging instructions eligible to participate in the 
closing transaction; and (iv) MOC/LOC paired quantity at reference 
price. The proposed new data feed will continue to provide that 
information but also additionally include (i) CO orders on the opposite 
side \61\ of the imbalance and (ii) at-priced LOC interest eligible to 
offset the imbalance.
---------------------------------------------------------------------------

    \61\ In the case of a buy imbalance, CO orders to sell at a 
price equal to or lower than the reference price are to be included 
in the imbalance. In the case of a sell imbalance, CO orders to buy 
at a price equal to or higher than the reference price are to be 
included in the imbalance.
---------------------------------------------------------------------------

    The proposed Order Imbalance Information data feed prior to the 
closing transaction will also make available two new data fields. The 
proposed new data fields will provide subscribers with a snap shot of 
the prices at which interest eligible to participate in the closing 
transaction would be executed in full against each other at the time 
data feed is disseminated. It will also provide subscribers with the 
price at which closing-only interest (i.e., MOC orders, marketable LOC 
orders, and CO orders on the opposite side of the imbalance) may be 
executed in full and the price at which orders in the Display Book 
(e.g., Minimum Display Reserve Orders, Floor broker reserve e-Quotes 
not designated to be excluded from the aggregated agency interest 
information available to the DMM (``do not display''), d-Quotes pegged 
e-Quotes,\62\ and Stop orders) will be executed in full.
---------------------------------------------------------------------------

    \62\ d-Quotes and pegged e-Quotes included in this new data 
field of the Order Imbalance Information data feed are included at 
the price indicated on the order as the base price to be used to 
calculate the range of discretion and not at prices within their 
discretionary pricing instructions.
---------------------------------------------------------------------------

    Only those CO orders on the opposite side of the imbalance will be 
included in the calculation of the new data fields. In order to avoid 
compromising the reserve interest at price points between the quote, if 
the price at which all closing orders in the Display Book may be 
executed in full is at or between the quote, then both data fields 
indicating imbalance information will publish the price at which the 
closing-only interest (i.e., MOC orders, marketable LOC orders, and CO 
orders) may be executed in full.
    Similarly the Exchange proposes to conform the pre-opening Order 
Imbalance Information data feed to provide its market participants with 
more information prior to the opening transaction. As such, the pre-
opening Order Imbalance Information data feed will include the price at 
which all the interest eligible to participate in the opening 
transaction may be executed in full.\63\ The Exchange does not propose 
to modify the time periods pursuant to NYSE Rule 15 when the pre-
opening Order Imbalance data feed is disseminated. Moreover, the 
calculation of the reference price will also remain the same.
---------------------------------------------------------------------------

    \63\ See Proposed NYSE Rule 15.
---------------------------------------------------------------------------

Execution of the Closing Transaction

    The Exchange proposes to maintain its current execution logic and 
codify the hierarchy of allocation logic applied to interest 
participating in the closing transaction. Proposed NYSE Rule 123C(7) 
will list all the interest that must be executed or cancelled as part 
of the closing transaction and the hierarchy of the interest that may 
be used to offset the closing imbalance. Moreover, proposed NYSE Rule 
123C(7) will add the CO order as the last interest eligible to 
participate in the closing transaction to offset an imbalance.
    The codification of hierarchy of allocation logic applied to 
interest participating in the closing transaction pursuant to proposed 
NYSE Rule 123C(7) will only slightly modify the execution of a closing 
transaction on the Exchange because it will now incorporate the new 
proposed CO order type into the closing transaction where it is 
eligible to participate.

Example of a Close Including the Imbalance Publications Pursuant to 
Proposed NYSE Rule 123C \64\

Example 4

    XYZ security has an average daily trading volume of approximately 
450,000 shares. At 3:10 p.m. XYZ receives a buy MOC order for 45,000 
shares. Shortly thereafter, in consultation with a Floor Official, the 
DMM publishes an Informational Imbalance. By 3:45 p.m. the buy 
imbalance has increased to 150,000 shares and the DMM disseminates a 
mandatory imbalance publication showing the updated amount. Also at

[[Page 59306]]

3:45 the Order Imbalance Information data feed commences and is 
disseminated every 5 seconds thereafter.
---------------------------------------------------------------------------

    \64\ Example numbers 4-6 mirror example numbers 1-3 above in 
that all the examples illustrate the execution of the closing 
transaction based on the principles explained above; however, 
example numbers 4-6 also incorporate the proposed new CO order type.
---------------------------------------------------------------------------

    Beginning at 3:55 p.m. the Order Imbalance data feed includes d-
Quotes and all other e-Quotes containing pegging instructions that are 
eligible to participate in the closing transaction based on current 
execution prices.
    The DMM received offsetting interest between 3:50 and 4 p.m. 
(official closing time) reducing the buy imbalance to 100,000 shares.
    The last bid in XYZ security prior to the closing transaction was 
$19.85 and the offer was $20.00. The last sale prior to 4 p.m. 
(official closing time) was at $19.85.
    The sell interest on the Display Book leading into the closing 
transaction consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of public limit orders at $20.24;
    4. 10,000 shares of tick sensitive LOC interest at $20.24;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    6. 40,000 shares of LOC interest at $20.25;
    7. 5,000 shares of non-MOC ``G'' market orders; and
    8. 5,000 shares of CO orders.
    Given this interest available in Display Book on both sides of the 
market, the DMM determines to close trading in XYZ security at a price 
of $20.25 and to sell 10,000 shares for the dealer account. The DMM 
interest is entered into the Display Book while the DMM is arranging 
the closing transaction which may be after 4 p.m. The DMM then executes 
the closing transaction in XYZ security at the price of $20.25.
    The closing execution logic is as follows:
    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares.
    The remaining imbalance of 100,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.25. As 
interest priced better than the closing price, numbers 1-5 above are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 95,000 share buy 
imbalance;
    2. 5,000 shares of Crowd market interest which leaves a 90,000 
share buy imbalance;
    3. 10,000 shares of public limit orders at $20.24, which leaves an 
80,000 share buy imbalance; and [sic]
    4. 10,000 shares of tick sensitive LOC interest at $20.24 which 
leaves a 70,000 share buy imbalance;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 60,000 share buy imbalance; \65\
---------------------------------------------------------------------------

    \65\ See supra text accompanying note 44.
---------------------------------------------------------------------------

    The remaining 60,000 share buy imbalance will be offset at the 
price of $20.25 as follows:
    6. 10,000 shares of DMM interest, which leaves a 50,000 share buy 
imbalance;
    7. 40,000 shares LOC interest at $20.25, which leaves a 10,000 
share buy imbalance;
    8. 5,000 shares of non-MOC ``G'' orders which leaves a 5,000 share 
buy imbalance; and
    9. 5,000 shares of CO orders fill the 5,000 share remaining of the 
buy imbalance.
    In the above example, the offsetting interest was equal to the size 
of the actual buy imbalance; however, in the event that any one type of 
offsetting interest with precedence in the hierarchy is sufficient to 
fill the imbalance that interest will be filled and the remaining 
interest lower in the hierarchy will receive a report of ``nothing 
done.''

Example 5

    Assuming the same imbalance publication information and receipt of 
offsetting interest in Example 4. The last sale in the 
security is at the price of $19.85. Again, the offsetting sell MOC 
interest is of 50,000 shares is netted against 50,000 shares of the 
150,000 shares of the buy imbalance at a price of $20.25, leaving a buy 
imbalance of 100,000 shares. The sell interest on the Display Book now 
consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of tick sensitive LOC interest at $20.24;
    4. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    5. 20,000 shares of e-Quote interest from a single Floor broker at 
$20.25;
    6. 50,000 shares of public limit orders at $20.25;
    7. 40,000 shares LOC interest at $20.25;
    8. 10,000 shares of non-MOC ``G'' market orders;
    9. 10,000 shares of CO orders.
    Given this interest available in Display Book, the DMM determines 
to close trading in XYZ security at a price of $20.25 and to sell 
50,000 shares for the dealer account. The DMM interest is entered into 
the Display Book while the DMM is arranging the closing transaction 
which may be after 4:00 p.m. The DMM then executes the closing 
transaction in XYZ security at the price of $20.25.
    The closing execution logic is as follows:
    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares.
    The remaining imbalance of 100,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.25. As 
interest priced better than the closing price, numbers 1-4 below are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 95,000 share buy 
imbalance;
    2. 5,000 shares of Crowd market interest, which leaves a 90,000 
share buy imbalance;
    3. 10,000 shares of tick sensitive LOC interest at $20.24, which 
leaves an 80,000 share buy imbalance;
    4. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 70,000 shares buy imbalance;
    The remaining 70,000 shares of the buy imbalance will be offset at 
the price of $20.25 as follows:
    5. 20,000 shares of e-Quote interest at $20.25, which leaves a 
50,000 share buy imbalance;
    6. 25,000 shares of at-priced DMM interest, which leaves a 25,000 
shares buy imbalance;
    7. 25,000 shares of public limit orders at $20.25, which fills the 
remaining 25,000 shares of the imbalance.
    The remaining 25,000 shares of at-priced DMM interest and the 
25,000 shares of public limit orders at $20.25 will not be 
executed.\66\ Additionally, the 40,000 shares LOC interest priced at 
$20.25, 10,000 shares of ``G'' orders and 10,000 shares of CO orders 
will also remain unexecuted and receive reports of ``nothing done.'' 
\67\
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    \66\ See supra text accompanying note 45.
    \67\ See supra text accompanying note 46.
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Example 6

    Assuming the same imbalance publication information and receipt of

[[Page 59307]]

offsetting interest in Example 4. The last sale in the 
security in this Example 6 is at the price of $20.23. Again, 
the offsetting sell MOC interest is of 50,000 shares is netted against 
50,000 shares of the 150,000 shares of the buy imbalance at a price of 
$20.25, leaving a buy imbalance of 100,000 shares. The sell interest on 
the Display Book now consists of:
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale;
    2. 5,000 shares of Crowd market interest;
    3. 10,000 shares of tick sensitive LOC interest at $20.24;
    4. 50,000 shares of public limit orders at $20.25;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24;
    6. 10,000 shares of LOC interest at $20.25;
    7. 10,000 shares of CO orders.
    In addition, while arranging the closing transaction after 4:00 
p.m. the DMM enters 20,000 shares of DMM interest to buy.\68\ There is 
additional sell interest on the Display Book that would accommodate the 
DMM's additional interest as follows:
---------------------------------------------------------------------------

    \68\ See supra text accompanying note 47.
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    8. 10,000 shares of public limit orders to sell at $20.26;
    9. 10,000 shares of public limit orders to sell at $20.27;
    Based on the interest available in Display Book on both sides of 
the market, the DMM has determined to close trading in XYZ security at 
a price of $20.27.
    The offsetting 50,000 shares of sell MOC interest is netted against 
50,000 shares of the current 170,000 shares of the buy imbalance at a 
price of $20.27, leaving a buy imbalance of 120,000 shares (including 
DMM interest).
    The remaining imbalance of 120,000 shares is offset by allocating 
it to the interest listed below, at the closing price of $20.27. As 
interest priced better than the closing price, numbers 1-7 below are 
required to be included in the closing transaction.
    1. 5,000 shares of tick sensitive MOC orders eligible to execute at 
a price better than the last sale, which leaves a 115,000 share buy 
imbalance;
    2. 5,000 shares of Crowd market interest, which leaves a 110,000 
share buy imbalance;
    3. 10,000 shares of tick sensitive LOC interest at $20.24, which 
leaves an 100,000 share buy imbalance;
    4. 50,000 shares of public limit orders at $20.25, which leaves a 
50,000 share buy imbalance;
    5. 10,000 shares of d-Quote interest that at its maximum discretion 
is $20.24, which leaves a 40,000 share buy imbalance;
    6. 10,000 shares LOC interest at $20.25, which leaves a 30,000 
share buy imbalance;
    7. 10,000 shares of public limit orders at $20.26, which leaves a 
20,000 share buy imbalance;
    8. 10,000 shares of public limit orders at $20.27 which leaves a 
10,000 share buy imbalance; and
    9. 10,000 shares of CO orders fill the remaining 10,000 shares of 
the buy imbalance.

Trading Halts

    The Exchange further proposes to amend NYSE Rule 123C to make 
``trading halt'' a defined term whose meaning is consistent with a halt 
in trading in any security pursuant to the provisions of NYSE Rule 123D 
(``Trading Halt'').\69\ Further, pursuant to the proposed rule, where a 
Trading Halt is in effect at 3:45 p.m., a Mandatory MOC/LOC Imbalance 
will be published as close to the resumption of trading as possible if 
the Trading Halt is lifted prior to the close of trading. In this 
event, MOC/LOC orders may be entered to offset the published imbalance. 
If the Trading Halt is not lifted, the entry of MOC/LOC interest, 
including offsetting interest, is prohibited.
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    \69\ See proposed NYSE Rule 123C(1)(f).
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    Where a Trading Halt occurs in a security after a Mandatory MOC/LOC 
Imbalance is published (i.e., after 3:45 p.m.), MOC/LOC orders may be 
entered to offset the published imbalance.\70\ Where a Trading Halt 
occurs after 3:45 p.m. and there is no Mandatory MOC/LOC Imbalance in 
the security, the entry of MOC/LOC interest will not be allowed.\71\
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    \70\ See proposed NYSE Rule 123C(2)(c)(i).
    \71\ See proposed NYSE Rule 123C(2)(c)(iii).
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    Unlike MOC/LOC orders, the entry of CO orders on both sides of the 
market will be permitted when a Trading Halt occurs in a security, but 
is lifted prior to the close of trading in the security. Because CO 
orders are the interest of last resort in the closing transaction, 
entry of such orders is not restricted to offsetting the Mandatory MOC/
LOC Imbalance.

Rescission of Expiration Friday Auxiliary Procedures for the Opening 
and Due Diligence Requirements

    The Exchange further proposes to amend NYSE Rule 123C to rescind 
the provisions governing ``Expiration Friday Auxiliary Procedures for 
the Opening''. The provisions governing Expiration Friday are vestigial 
in that they were created to facilitate a fair and orderly opening 
transaction in light of the additional order flow on Expiration 
Fridays. Today, modifications to Exchange systems allow the DMM to 
accommodate for such fluctuation in volume, thus rendering the 
provisions of this section unnecessary. Moreover, the order marking 
provisions (i.e., appending the indicator ``OPG'') were an 
accommodation to member organizations whose systems were unable to 
electronically affix the OPG designation. Today, all Exchange member 
organizations are capable of affixing appropriate order designations 
rendering these provisions unwarranted. For these reasons the Exchange 
believes that the rescission of the Expiration Friday Auxiliary 
Procedures for the Opening is appropriate.
    In keeping with the above amendments, the Exchange further seeks to 
make the provisions of NYSE Rule 123C govern solely Market and Limit 
``on the Close'' Policy. Therefore, the Exchange proposes to delete the 
``Due Diligence Requirements'' from this rule as they are redundant 
provisions that are codified in NYSE Rule 405 (``Diligence as to 
Accounts'').

Conclusion

    The Exchange believes that requiring MOC/LOC interest to be 
electronically entered will increase the efficiency at the point of 
sale. It will provide accurate information faster to market 
participants and allow the DMM greater control in active trading 
crowds. Furthermore, the Exchange believes that moving the cut-off time 
for the entry of MOC/LOC orders from 3:40 p.m. to 3:45 p.m. will allow 
Exchange participants greater control of the handling of their orders 
to be executed in the closing transaction and greater participation in 
active markets. The Exchange further believes that the proposed 
amendments to create the CO order will add greater efficiency to the 
closing process by providing an additional source of liquidity to 
offset an imbalance going into the closing transaction. The proposed 
modifications will provide investors with a more accurate depiction of 
the market interest prior to the closing transaction thereby allowing 
them to make better informed trading decisions.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Securities Exchange Act of 1934 (the ``Act''),\72\ in 
general, and furthers

[[Page 59308]]

the objectives of Section 6(b)(5) of the Act,\73\ in particular, in 
that it is designed to prevent fraudulent and manipulative acts and 
practices, 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 Exchange believes the proposed rule change will 
facilitate the timely and efficient closing of securities on the 
Exchange by increasing transparency and providing market participants 
with an additional method of offset imbalances prior to the closing 
transaction that ultimately serves to protect investors and the public 
interest.
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    \72\ 15 U.S.C. 78f(b).
    \73\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (a) By order approve such proposed rule change, or
    (b) Institute proceedings to determine whether the proposed rule 
change should be disapproved.
    The Exchange has requested accelerated approval of this proposed 
rule change prior to the 30th day after the date of publication of the 
notice in the Federal Register. The Commission is considering granting 
accelerated approval of the proposed rule change at the end of a 21-day 
comment period.

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-NYSE-2009-111 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-2009-111. 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 inspection and 
copying in the Commission's Public Reference Room, on official business 
days between the hours of 10 a.m. and 3 p.m. Copies of the filing also 
will be available for inspection and copying at the principal office of 
the Exchange. 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-
NYSE-2009-111 and should be submitted on or before December 8, 2009.
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    \74\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\74\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-27503 Filed 11-16-09; 8:45 am]
BILLING CODE 8011-01-P