[Federal Register Volume 75, Number 5 (Friday, January 8, 2010)]
[Notices]
[Pages 1107-1108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-72]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61264; File No. SR-NYSE-2009-131]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Amending NYSE Rule 123C(8)(a)(1) To Extend Operation of the Extreme 
Order Imbalances Pilot

December 31, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on December 24, 2009, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend NYSE Rule 123C(8)(a)(1) to extend 
the operation of the pilot to temporarily suspend certain NYSE 
requirements relating to the closing of securities on the Exchange 
until the earlier of Securities and Exchange Commission approval to 
make such pilot permanent or March 1, 2010. The text of the proposed 
rule change is available at the Exchange, the Commission's Public 
Reference Room, and http://www.nyse.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NYSE Rule 123C(8)(a)(1) allows the Exchange to temporarily suspend 
certain rule requirements at the close when extreme order imbalances 
may cause significant dislocation to the closing price. The rule has 
operated on a pilot basis since April 2009 (``Extreme Order Imbalances 
Pilot'' or ``Pilot'').\3\ Through this filing, NYSE proposes to extend 
the Pilot until the earlier of Securities and Exchange Commission 
approval to make such Pilot permanent or March 1, 2010.\4\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 59755 (April 13, 
2009), 74 FR 18009 (April 20, 2009) (SR-NYSE-2009-18).
    \4\ The Exchange notes that parallel changes are proposed to be 
made to the rules of NYSE Amex LLC. See SR-NYSEAmex-2009-96.
---------------------------------------------------------------------------

Background

    Pursuant to NYSE Rule 123C(8)(a)(1), the Exchange may suspend NYSE 
Rules 52 (Hours of Operation) to resolve an extreme order imbalance 
that may result in a closing price dislocation at the close as a result 
of an order entered into Exchange systems, or represented to a DMM 
orally at or near the close. The provisions of NYSE Rule 123C(8)(a)(1) 
operate as the Extreme Order Imbalance Pilot.
    As a condition of the approval to operate the Pilot, the Exchange 
committed to provide the Commission with information regarding: (i) How 
often a Rule 52 temporary suspension pursuant to the Pilot was invoked 
during the six months following its approval; and (ii) the Exchange's 
determination as to how to proceed with technical modifications to 
reconfigure Exchange systems to accept orders electronically after 4 
p.m.
    The Extreme Order Imbalance Pilot is scheduled to end operation on 
December 31, 2009.\5\ The Exchange is currently preparing a rule filing 
seeking permission to make the provisions of the Pilot permanent with 
certain modifications but does not expect that filing to be completed 
and approved by the Commission before December 31, 2009.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 60809 (October 9, 
2009), 74 FR 53532 (October 19, 2009) (SR-NYSE-2009-104) (extending 
the operation of the pilot from October 13, 2009 to December 31, 
2009).
---------------------------------------------------------------------------

Proposal To Extend the Operation of the Extreme Order Imbalance Pilot

    The Exchange established the Extreme Order Imbalance Pilot to 
create a mechanism for ensuring a fair and orderly close when interest 
is received at or near the close that could negatively affect the 
closing transaction. The Exchange believes that this tool has proved 
very useful to resolve an extreme order imbalance that may result in a 
closing price dislocation at the close as a result of an order entered 
into Exchange systems, or represented to a DMM orally at or near the 
close.
    As the Exchange has previously stated, NYSE Rule 123C(8) will be 
invoked to attract offsetting interest in rare circumstances where 
there exists an extreme imbalance at the close such that a DMM is 
unable to close the security without significantly dislocating the 
price. This is evidenced by the fact that during the course of the 
Pilot, the Exchange invoked the provisions of NYSE Rule 123C(8), 
including the provisions of the Extreme Order Imbalance Pilot pursuant 
to NYSE Rule 123C(8)(a)(1), in only one security on August 31, 2009.
    In addition, during the operation of the Pilot, the Exchange 
determined that it would not be as onerous as previously believed to 
modify Exchange systems to accept orders electronically after 4:00 p.m. 
The Exchange anticipates that such system modifications could [sic] be 
completed by December 31, 2009.
    Given the above, the Exchange believes that provisions governing 
the Extreme Order Imbalance Pilot should be made permanent. Through 
this filing the Exchange seeks to extend the current operation of the 
Pilot in order to allow the Exchange to formally submit a filing to the 
Commission to convert the provisions governing the Pilot to permanent 
rules and complete the technological modifications required to accept 
orders electronically after 4:00 p.m. The Exchange therefore requests 
an extension from the current expiration date of December 31, 2009, 
until the earlier of Securities and Exchange Commission approval to 
make such Pilot permanent or March 1, 2010.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \6\ that an Exchange have rules that 
are designed to promote just and equitable principles of trade, to 
remove impediments to and perfect the

[[Page 1108]]

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 that the instant filing is consistent with these principles. 
Specifically an extension will allow the Exchange to: (i) Prepare and 
submit a filing to make the provisions governing the Extreme Order 
Imbalance Pilot permanent; (ii) have such filing complete public notice 
and comment period; and (iii) complete the 19b-4 approval process. The 
rule operates to protect investors and the public interest by ensuring 
that the closing price at the Exchange is not significantly dislocated 
from the last sale price by virtue of an extreme order imbalance at or 
near the close.
---------------------------------------------------------------------------

    \6\ 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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \7\ and Rule 19b-4(f)(6) thereunder.\8\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \8\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative prior to 30 days after the date of the filing.\9\ 
However, pursuant to Rule 19b-4(f)(6)(iii), the Commission may 
designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange requested 
that the Commission waive the 30-day operative delay, as specified in 
Rule 19b-4(f)(6)(iii),\10\ which would make the rule change operative 
immediately. The Exchange believes that continuation of the Pilot does 
not burden competition and would operate to protect investors and the 
public interest by ensuring that the closing price at the Exchange is 
not significantly dislocated from the last sale price by virtue of an 
extreme order imbalance at or near the close.
---------------------------------------------------------------------------

    \9\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the self-regulatory organization to give the 
Commission notice of its intent to file the proposed rule change, 
along with a brief description and text of the proposed rule change, 
at least five business days prior to the date of filing of the 
proposed rule change, or such shorter time as designated by the 
Commission. NYSE has satisfied this requirement.
    \10\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because it would allow the Pilot to continue without interruption while 
the Exchange works towards submitting a separate proposal to make the 
Pilot permanent. Accordingly, the Commission designates the proposed 
rule change as operative upon filing with the Commission.\11\
---------------------------------------------------------------------------

    \11\ For purposes only of waiving the operative delay for this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate 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.\12\
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(C).
---------------------------------------------------------------------------

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-2009-131 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-2009-131. 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,\13\ 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 Section on official 
business days between the hours of 10 a.m. and 3 p.m. Copies of the 
filing will also 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-2009-131 and should be submitted on or before 
January 29, 2010.
---------------------------------------------------------------------------

    \13\ The text of the proposed rule change is available on the 
Commission's Web site at http://www.sec.gov.
    \14\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-72 Filed 1-7-10; 8:45 am]
BILLING CODE 8011-01-P