[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Notices]
[Pages 36768-36772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15547]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62340; File No. SR-BATS-2010-016]


Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of 
Filing of Proposed Rule Change To Amend BATS Rule 11.17, entitled 
``Clearly Erroneous Executions''

June 21, 2010.
    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 June 17, 2010, BATS Exchange, Inc. (the ``Exchange'' or 
``BATS'') 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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[[Page 36769]]

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

    The Exchange is proposing to amend BATS Rule 11.17, entitled 
``Clearly Erroneous Executions.''
    The text of the proposed rule change is available at the Exchange's 
Web site at http://www.batstrading.com, at the principal office of the 
Exchange, and at the Commission's Public Reference Room.

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 Exchange 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 these 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
    The Exchange is proposing modifications to its Rule 11.17, entitled 
Clearly Erroneous Executions. First, the Exchange proposes replacing 
existing paragraph (c)(2) of Rule 11.17, entitled ``Unusual 
Circumstances and Joint Market Rulings'' with a new paragraph, entitled 
``Multi-Stock Events Involving Twenty or More Securities.'' Second, the 
Exchange proposes replacing existing paragraph (c)(4) of Rule 11.17, 
entitled ``Numerical Guidelines Applicable to Volatile Market Opens'' 
with a new paragraph, entitled ``Individual Stock Trading Pauses.'' 
Third, the Exchange is proposing changes to existing paragraphs (f) and 
(g) of Rule 11.17 to eliminate the ability of the Exchange to deviate 
from the Numerical Guidelines contained in paragraph (c)(1) (other than 
under limited circumstances set forth in paragraph (f)) when deciding 
which transactions will be reviewed by the Exchange as potentially 
clearly erroneous. Finally, the Exchange proposes modifications to 
paragraphs (c)(1), (c)(3) and (e) of Rule 11.17 consistent with the 
proposed changes to paragraphs (c)(2) and (c)(4). As proposed, the 
provisions of paragraphs (c), (e)(2), (f), and (g) of Rule 11.17, as 
amended pursuant to this filing, would be in effect during a pilot 
period set to end on December 10, 2010. If the pilot is not either 
extended or approved permanent by December 10, 2010, the prior versions 
of paragraphs (c), (e)(2), (f), and (g) of Rule 11.17 would be in 
effect.
    The Exchange is proposing the rule changes described below in 
consultation with other markets and Commission staff to provide for 
uniform treatment: (1) Of clearly erroneous execution reviews in Multi-
Stock Events involving twenty or more securities; and (2) in the event 
transactions occur that result in the issuance of an individual stock 
trading pause by the primary market and subsequent transactions that 
occur before the trading pause is in effect on the Exchange. The 
Exchange has also proposed additional changes to Rule 11.17 that reduce 
the ability of the Exchange to deviate from the objective standards set 
forth in the Rule. The proposed changes are described in further detail 
below.

Revised Paragraph (c)(2) Related to Multi-Stock Events Involving Twenty 
or More Securities

    The Exchange proposes to eliminate the majority of existing 
paragraph (c)(2), which provides flexibility to the Exchange to use 
different Numerical Guidelines or Reference Prices in various ``Unusual 
Circumstances.'' The Exchange proposes to replace this paragraph with 
new language that would apply to Multi-Stock Events involving twenty or 
more securities whose executions occurred within a period of five 
minutes or less. The revised paragraph would retain language making 
clear that during Multi-Stock Events involving twenty or more 
securities the number of affected transactions may be such that 
immediate finality is necessary to maintain a fair and orderly market 
and to protect investors and the public interest. Accordingly, in such 
circumstances, decisions made by the Exchange in consultation with 
other markets could not be appealed. Further, as proposed, in 
connection with reviews of Multi-Stock Events involving twenty or more 
securities, the Exchange may use a Reference Price other than 
consolidated last sale in its review of potentially clearly erroneous 
executions. With the exception of those securities under review that 
are subject to an individual stock trading pause as described in 
proposed paragraph (c)(4), and to ensure consistent application across 
market centers when proposed paragraph (c)(2) is invoked, the Exchange 
will promptly coordinate with the other market centers to determine the 
appropriate review period, which may be greater than the period of five 
minutes or less that triggered application of proposed paragraph 
(c)(2), as well as select one or more specific points in time prior to 
the transactions in question and use transaction prices at or 
immediately prior to the one or more specific points in time selected 
as the Reference Price. The Exchange will nullify as clearly erroneous 
all transactions that are at prices equal to or greater than 30% away 
from the Reference Price in each affected security during the review 
period selected by the Exchange and other markets consistent with the 
proposed paragraph (c)(2).
    Because the Exchange and other market centers are adopting a 
different threshold and standards to handle large-scale market events, 
which would include events occurring during times of high volatility at 
the beginning of regular trading hours, the Exchange proposes deletion 
of paragraph (c)(4) (``Numerical Guidelines Applicable to Volatile 
Market Opens'') of the existing rule. The Exchange believes that this 
provision is no longer necessary, and if maintained, could result in 
extremely high Numerical Guidelines (up to 90%) in certain 
circumstances.

Revised Paragraph (c)(4) Related to Individual Stock Trading Pauses

    The primary listing markets for U.S. stocks recently amended their 
rules so that they may, from time to time, issue a trading pause for an 
individual security if the price of such security moves 10% or more 
from a sale in a preceding five-minute period. In this regard, the 
Exchange recently amended its rules to pause trading in an individual 
stock when the primary listing market for such stock issues a trading 
pause in any Circuit Breaker Securities, as defined in Interpretation 
and Policy .05 of Rule 11.18.\3\ As described above, the Exchange is 
proposing to eliminate existing paragraph (c)(4) (``Numerical 
Guidelines Applicable to Volatile Market Opens''). The Exchange 
proposes adopting a rule, numbered as (c)(4) following such 
elimination, which will provide for uniform treatment of clearly 
erroneous execution reviews in the event transactions occur that result 
in the issuance of an individual stock trading pause by the primary 
listing market and subsequent transactions that occur before the 
trading pause is in effect on the Exchange. The proposed rule change is 
necessary to provide greater certainty

[[Page 36770]]

of the clearly erroneous Reference Price for transactions that trigger 
a trading pause (the ``Trigger Trade'') and subsequent transactions 
occurring between the time of the Trigger Trade and the time the 
trading pause message is received by the Exchange from the single plan 
processor responsible for consolidation and dissemination of 
information for the security and put into effect on the Exchange, 
especially under highly volatile and active market conditions.
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    \3\ See BATS Rule 11.18; see also Securities Exchange Act 
Release No. 62252 (June 10, 2010), 75 FR 34186 (June 16, 2010) (SR-
BATS-2010-014).
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    The Exchange proposes to revise paragraph (c)(4) of BATS Rule 11.17 
to allow the Exchange to use the price that triggered a trading pause 
in an individual stock (the ``Trading Pause Trigger Price'') as the 
Reference Price for clearly erroneous execution reviews of a Trigger 
Trade and transactions that occur immediately after a Trigger Trade but 
before a trading pause is in effect on the Exchange. As proposed, the 
phrase ``Trading Pause Trigger Price'' shall mean the price that 
triggered a trading pause in any Circuit Breaker Securities as defined 
in Interpretation and Policy .05 of Rule 11.18. The Trading Pause 
Trigger Price reflects a price calculated by the primary listing market 
over a rolling five-minute period and may differ from the execution 
price of a transaction that triggered a trading pause. The Exchange 
will rely on the primary listing market that issued an individual stock 
trading pause to determine and communicate the Trading Pause Trigger 
Price for such stock. The Exchange proposes to make clear in the text 
that the proposed standards in paragraph (c)(4) apply regardless of 
whether the security at issue is part of a Multi-Stock Event involving 
five or more securities as described in proposed paragraphs (c)(1) and 
(c)(2).
    As proposed, the Numerical Guidelines set forth in BATS Rule 
11.17(c)(1), other than those Numerical Guidelines applicable to Multi-
Stock Events, would apply to reviews of Trigger Trades and subsequent 
transactions. The Exchange proposes to review, on its own motion 
pursuant to paragraph (g) of the Rule, all transactions that trigger a 
trading pause and subsequent transactions occurring before the trading 
pause is in effect on the Exchange. The Exchange has proposed to limit 
such reviews to reviews of transactions that executed at a price lower 
than the Trading Pause Trigger Price in the event of a price decline 
and higher than the Trading Pause Trigger Price in the event of a price 
rise. Because the proposed rules for trading pauses would only apply 
within Regular Trading Hours,\4\ an execution would reviewed and 
nullified as clearly erroneous if it exceeds the following thresholds:
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    \4\ Regular Trading Hours are defined in BATS Rule 1.5 as the 
time between 9:30 a.m. and 4 p.m. Eastern Time. According to rules 
of the primary listing markets, an individual stock trading pause 
can be issued based on a Trigger Trade that occurs at any time 
between 9:45 a.m. and 3:35 p.m. Eastern Time. See NASDAQ Rule 
4120(a)(11), NYSE Rule 80C, and NYSE Arca Rule 7.11.

------------------------------------------------------------------------
                                          Numerical guidelines (subject
                                            transaction's % difference
       Reference price or product         from the trading pause trigger
                                                      price)
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Greater than $0.00 up to and including   10
 $25.00.
Greater than $25.00 up to and including  5
 $50.00.
Greater than $50.00....................  3
Leveraged ETF/ETN securities...........  Regular Trading Hours Numerical
                                          Guidelines multiplied by the
                                          leverage multiplier (i.e.,
                                          2x).
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Revisions to Paragraphs (f) and (g)

    Consistent with other proposals made in this filing, the Exchange 
proposes modifying paragraphs (f) and (g) to eliminate the ability of 
an Exchange official to deviate from the Numerical Guidelines contained 
in the Rule other than under very limited circumstances set forth in 
paragraph (f).
    Current paragraph (f) provides an officer of the Exchange or other 
senior level employee designee the ability on his or her own motion, to 
review and rule on executions that result from ``any disruption or a 
malfunction in the use or operation of any electronic communications 
and trading facilities of the Exchange, or extraordinary market 
conditions or other circumstances in which the nullification of 
transactions may be necessary for the maintenance of a fair and orderly 
market or the protection of investors and the public interest exist.'' 
Without modification, the language ``extraordinary market conditions or 
other circumstances * * *'' would leave the Exchange with broad 
discretion to deviate from the Numerical Guidelines set forth in 
paragraph (c)(1). Thus, the Exchange proposes narrowing the scope of 
paragraph (f) so that it only permits the Exchange to nullify 
transactions consistent with that paragraph (including at a lower 
Numerical Guideline) if there is a disruption or malfunction in the 
operation of the Exchange's system. For the same reason, the Exchange 
proposes eliminating the words ``use or'' from the language in 
paragraph (f) to make clear that the provision only applies to a 
disruption or malfunction of the Exchange's system (and not of an 
Exchange user's systems).
    Paragraph (g) gives an officer of the Exchange or other senior 
level employee designee the ability on his or her own motion to review 
transactions as potentially clearly erroneous. Consistent with the goal 
of achieving more objective and standard results, the Exchange proposes 
deleting language in existing paragraph (g) that would allow the 
Exchange to deviate from the Numerical Guidelines contained in 
paragraph (c)(1). In addition, the Exchange proposes to make clear that 
any Officer of the Exchange or other senior level employee reviewing 
transactions on his or her own motion must follow the guidelines set 
forth in proposed paragraph (c)(4), if applicable. Accordingly, the 
Exchange proposes to modify paragraph (g) to state that an officer must 
rely on paragraphs (c)(1)-(4) of Rule 11.17 when reviewing transactions 
on his or her own motion.

Additional Conforming Revisions to Paragraphs (c)(1), (c)(3) and (e)

    Based on proposed paragraph (c)(2), the Exchange has proposed 
certain conforming changes to paragraphs (c)(1), (c)(3) and (e) of the 
existing Rule, as described below.
    Under current BATS Rule 11.17, a transaction may be found to be 
clearly erroneous only if the price of the transaction to buy (sell) 
that is the subject of the complaint is greater than (less than) the 
Reference Price by an amount that equals or exceeds the Numerical 
Guidelines set forth in paragraph (c)(1) of the Rule. The ``Reference 
Price'' is currently defined as ``the consolidated last sale 
immediately prior to the execution(s) under review

[[Page 36771]]

except for in Unusual Circumstances as described in paragraph (c)(2)'' 
of BATS Rule 11.17. The Exchange proposes modifying paragraph (c)(1) 
consistent with the changes described above such that the Exchange 
shall use the consolidated last sale immediately prior to the 
execution(s) under review as the Reference Price except for: (A) Multi-
Stock Events involving twenty or more securities, as described in 
proposed paragraph (c)(2); (B) transactions not involving a Multi-Stock 
Event as described in proposed paragraph (c)(2) that trigger a trading 
pause and subsequent transactions, as described in proposed paragraph 
(c)(4), in which case the Reference Price shall be determined in 
accordance with that paragraph (c)(4); and (C) in other circumstances, 
such as, for example, relevant news impacting a security or securities, 
periods of extreme market volatility, sustained illiquidity, or 
widespread system issues, where use of a different Reference Price is 
necessary for the maintenance of a fair and orderly market and the 
protection of investors and the public interest. The Exchange also 
proposes modifying paragraph (c)(1) to reduce uncertainty as to the 
applicability of the Numerical Guidelines, by requiring a finding that 
an execution was clearly erroneous if such execution exceeds the 
Numerical Guidelines, subject only to the Additional Factors included 
in paragraph (c)(3). Moreover, the Exchange proposes revising the 
existing description for Multi-Stock Events that is contained on the 
Numerical Guidelines chart to make clear that different Numerical 
Guidelines apply for Multi-Stock Events involving five or more, but 
less than twenty, securities whose executions occurred within a period 
of five minutes or less. In addition, the Exchange proposes adding to 
the Numerical Guidelines chart a row that contains the Numerical 
Guidelines (30%) for Multi-Stock Events involving twenty or more 
securities whose executions occurred within a period of five minutes or 
less.
    The Exchange proposes clarifying paragraph (c)(3) to make clear 
that the additional factors set forth in that paragraph are not 
intended to provide any discretion to an Exchange official to deviate 
from the guidelines that apply to Multi-Stock Events or to transactions 
in securities subject to individual stock trading pauses.
    Finally, the Exchange proposes amending paragraph (e)(2), related 
to appeals of clearly erroneous execution decisions by the Exchange, to 
preserve non-appealability of all joint rulings between the Exchange 
and one or more other market centers. The Exchange believes that 
certainty and consistency is critical to reviews of related executions 
that span multiple market centers. Accordingly, although the Exchange 
has proposed deletion of such language from existing paragraph (c)(3), 
the Exchange proposes adding such language back in to paragraph (e)(2) 
to make clear that joint market rulings are not appealable.
2. Statutory Basis
    Approval of the rule change proposed in this submission is 
consistent with the requirements of the Act and the rules and 
regulations thereunder that are applicable to a national securities 
exchange, and, in particular, with the requirements of Section 6(b) of 
the Act.\5\ In particular, the proposed change is consistent with 
Section 6(b)(5) of the Act,\6\ because it would promote just and 
equitable principles of trade, remove impediments to, and perfect the 
mechanism of, a free and open market and a national market system, and, 
in general, protect investors and the public interest. The proposed 
rule change is also designed to support the principles of Section 
11A(a)(1) \7\ of the Act in that it seeks to assure fair competition 
among brokers and dealers and among exchange markets. The Exchange 
believes that the proposed rule meets these requirements in that it 
promotes transparency and uniformity across markets concerning reviews 
of potentially clearly erroneous executions in various contexts, 
including reviews in the context of a Multi-Stock Event involving 
twenty or more securities and reviews resulting from a Trigger Trade 
and any executions occurring immediately after a Trigger Trade but 
before a trading pause is in effect on the Exchange. Further, the 
Exchange believes that the proposed changes enhance the objectivity of 
decisions made by the Exchange with respect to clearly erroneous 
executions.
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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ 15 U.S.C. 78k-1(a)(1).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change imposes 
any burden on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange has neither solicited nor received written comments on 
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.

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-BATS-2010-016 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-BATS-2010-016. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official

[[Page 36772]]

business days between the hours of 10 a.m. and 3 p.m. Copies of such 
filing also will be available for inspection and copying at the 
principal office of 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 publicly available. All submissions should refer to 
File Number SR-BATS-2010-016 and should be submitted on or before July 
19, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\8\
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    \8\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-15547 Filed 6-25-10; 8:45 am]
BILLING CODE 8010-01-P