[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Notices]
[Pages 74520-74524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30168]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68393; File No. SR-Phlx-2012-134]


Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of 
Filing and Immediate Effectiveness of a Proposal with Respect to the 
Authority of the Exchange or Nasdaq Options Services LLC (``NOS'') To 
Cancel Options Orders when a Technical or System Issue Occurs and To 
Describe the Operation of an Error Account for NOS

December 10, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on November 30, 2012, NASDAQ OMX PHLX LLC (``PHLX'' or 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 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 is filing a proposal with respect to the authority of 
the Exchange or NOS to cancel options orders when a technical or system 
issue occurs and to describe the operation of an error account for NOS. 
The text of the proposed rule change is available at http://nasdaqomxphlx.cchwallstreet.com, at PHLX's principal office, 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 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.

[[Page 74521]]

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

1. Purpose
    The Exchange proposes to amend Rule 1080(m) by adding a new 
subparagraph (v) that addresses the authority of the Exchange or NOS to 
cancel options orders when a technical or systems issue occurs and to 
describe the operation of an error account for NOS.\4\
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    \4\ NOS is a facility of the Exchange. Accordingly, under Rule 
1080(m), the Exchange is responsible for filing with the Commission 
rule changes and fees relating to NOS's functions. In addition, the 
Exchange is using the phrase ``NOS or the Exchange'' in this rule 
filing to reflect the fact that a decision to take action with 
respect to orders affected by a technical or systems issue may be 
made in the capacity of NOS or the Exchange depending on where those 
orders are located at the time of that decision. From time to time, 
the Exchange may use non-affiliate third-party broker-dealers to 
provide outbound routing services (i.e., third-party Routing 
Brokers). In those cases, orders are submitted to the third-party 
Routing Broker through NOS, the third-party Routing Broker routes 
the orders to the routing destination in its name, and any 
executions are submitted for clearance and settlement in the name of 
NOS so that any resulting positions are delivered to NOS upon 
settlement. As described above, NOS normally arranges for any 
resulting securities positions to be delivered to the member that 
submitted the corresponding order to the Exchange. If error 
positions (as defined in proposed Rule 1080(m)(v)(2)) result in 
connection with the Exchange's use of a third-party Routing Broker 
for outbound routing, and those positions are delivered to NOS 
through the clearance and settlement process, NOS would be permitted 
to resolve those positions in accordance with proposed Rule 
1080(m)(v). If the third-party Routing Broker received error 
positions in connection with its role as a routing broker for the 
Exchange, and the error positions were not delivered to NOS through 
the clearance and settlement process, then the third-party Routing 
Broker would resolve the error positions itself, and NOS would not 
be permitted to accept the error positions, as set forth in proposed 
Rule 1080(m)(v)(2)(B).
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    NOS is the approved routing broker of the Exchange, subject to the 
conditions listed in Rule 1080(m). The Exchange relies on NOS to 
provide outbound routing services from itself to routing destinations 
of NOS (``routing destinations'').\5\ When NOS routes orders to a 
routing destination, it does so by sending a corresponding order in its 
own name to the routing destination. In the normal course, routed 
orders that are executed at routing destinations are submitted for 
clearance and settlement in the name of NOS, and NOS arranges for any 
resulting securities positions to be delivered to the member that 
submitted the corresponding order to the Exchange. From time to time, 
however, the Exchange and NOS encounter situations in which it becomes 
necessary to cancel orders and resolve error positions.\6\
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    \5\ The Exchange has authority to receive inbound routes of 
options orders by NOS from NASDAQ OMX BX (on a one year pilot basis) 
and The NASDAQ Options Market. See Securities Exchange Act Release 
Nos. 67294 (June 28, 2012), 77 FR 39771 (July 5, 2012)(SR-Phlx-2012-
68); 58179 (July 17, 2008), 73 FR 42874 (July 23, 2008) (SR-Phlx-
2008-31); and 65399 (September 26, 2011), 76 FR 60955 (September 30, 
2011)(SR-Phlx-2011-111).
    \6\ The examples described in this filing are not intended to be 
exclusive. Proposed Rule 1080(m)(v) would provide general authority 
for the Exchange or NOS to cancel orders in order to maintain fair 
and orderly markets when technical and systems issues are occurring, 
and Rule 1080(m)(v) also would set forth the manner in which error 
positions may be handled by the Exchange or NOS. The proposed rule 
change is not limited to addressing order cancellation or error 
positions resulting only from the specific examples described in 
this filing.
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Examples of Circumstances That May Lead to Canceled Orders
    A technical or systems issue may arise at NOS, a routing 
destination, or the Exchange that may cause the Exchange or NOS to take 
steps to cancel orders if the Exchange or NOS determines that such 
action is necessary to maintain a fair and orderly market. The examples 
set forth below describe some of the circumstances in which the 
Exchange or NOS may decide to cancel orders.
    Example 1. If NOS or a routing destination experiences a technical 
or systems issue that results in NOS not receiving responses to 
immediate or cancel (``IOC'') orders that it sent to the routing 
destination, and that issue is not resolved in a timely manner, NOS or 
the Exchange would seek to cancel the routed orders affected by the 
issue.\7\ For instance, if NOS experiences a connectivity issue 
affecting the manner in which it sends or receives order messages to or 
from routing destinations, it may be unable to receive timely execution 
or cancellation reports from the routing destinations, and NOS or the 
Exchange may consequently seek to cancel the affected routed orders. 
Once the decision is made to cancel those routed orders, any 
cancellation that a member submitted to the Exchange on its initial 
order during such a situation would be honored.\8\
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    \7\ In a normal situation (i.e., one in which a technical or 
systems issue does not exist), NOS should receive an immediate 
response to an IOC order from a routing destination, and would pass 
the resulting fill or cancellation on to the Exchange member. After 
submitting an order that is routed to a routing destination, if a 
member sends an instruction to cancel that order, the cancellation 
is held by the Exchange until a response is received from the 
routing destination. For instance, if the routing destination 
executes that order, the execution would be passed on to the member 
and the cancellation instruction would be disregarded.
    \8\ If a member did not submit a cancellation to the Exchange, 
however, that initial order would remain ``live'' and thus be 
eligible for execution or posting on the Exchange, and neither the 
Exchange nor NOS would treat any execution of that initial order or 
any subsequent routed order related to that initial order as an 
error.
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    Example 2. If the Exchange experiences a systems issue, the 
Exchange may take steps to cancel all outstanding orders affected by 
that issue and notify affected members of the cancellations. In those 
cases, the Exchange would seek to cancel any routed orders related to 
the members' initial orders.
Examples of Circumstances That May Lead to Error Positions
    In some instances, the technical or systems issue at NOS, a routing 
destination, the Exchange, or a non-affiliate third party Routing 
Broker may also result in NOS acquiring an error position that it must 
resolve. The examples set forth below describe some of the 
circumstances in which error positions may arise.
    Example A. Error positions may result from routed orders that the 
Exchange or NOS attempts to cancel but that are executed before the 
routing destination receives the cancellation message or that are 
executed because the routing destination is unable to process the 
cancellation message. Using the situation described in Example 1 above, 
assume that the Exchange seeks to cancel orders routed to a routing 
destination because it is not receiving timely execution or 
cancellation reports from the routing destination. In such a situation, 
NOS may still receive executions from the routing destination after 
connectivity is restored, which it would not then allocate to members 
because of the earlier decision to cancel the affected routed orders. 
Instead, NOS would post those positions into its error account and 
resolve the positions in the manner described below.
    Example B. Error positions may result from an order processing 
issue at a routing destination. For instance, if a routing destination 
experienced a systems problem that affects its order processing, it may 
transmit back a message purporting to cancel a routed order, but then 
subsequently submit an execution of that same order (i.e., a locked-in 
trade) to The Options Clearing Corporation (``OCC'') for clearance and 
settlement. In such a situation, the Exchange would not then allocate 
the execution to the member because of the earlier cancellation message 
from the routing destination. Instead, NOS would post those positions 
into its error account and resolve the positions in the manner 
described below.
    Example C. Error positions may result if NOS receives an execution 
report from a routing destination but does not

[[Page 74522]]

receive clearing instructions for the execution from the routing 
destination. For instance, assume that a member sends the Exchange an 
order to buy 100 contracts overlying ABC stock, which causes NOS to 
send an order to a routing destination that is subsequently executed, 
cleared, and closed out by that routing destination, and the execution 
is ultimately communicated back to that member. On the next trading day 
(T+1), if the routing destination does not provide clearing 
instructions for that execution, NOS would still be responsible for 
settling that member's purchase, but would be left with a short 
position in its error account.\9\ NOS would resolve the position in the 
manner described below.
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    \9\ To the extent that NOS incurred a loss in covering its short 
position, it would submit a reimbursement claim to that routing 
destination.
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    Example D. Error positions may result from a technical or systems 
issue that causes orders to be executed in the name of NOS that are not 
related to NOS's function as the Exchange's routing broker and are not 
related to any corresponding orders of members. As a result, NOS would 
not be able to assign any positions resulting from such an issue to 
members. Instead, NOS would post those positions into its error account 
and resolve the positions in the manner described below.
    Example E. Error positions may result from a technical or systems 
issue through which the Exchange does not receive sufficient notice 
that a member that has executed trades on the Exchange has lost the 
ability to clear trades through OCC. In such a situation, the Exchange 
would not have valid clearing information, which would prevent the 
trade from being automatically processed for clearance and settlement 
on a locked-in basis. Accordingly, NOS would assume that member's side 
of the trades so that the counterparties can settle the trades. NOS 
would post those positions into its error account and resolve the 
positions in the manner described below.
    Example F. Error positions may result from a technical or systems 
issue at the Exchange that does not involve routing of orders through 
NOS. For example, a situation may arise in which a posted quote/order 
was validly cancelled but the system erroneously matched that quote/
order with an order that was seeking to access it. In such a situation, 
NOS would have to assume the side of the trade opposite the order 
seeking to access the cancelled quote/order. NOS would post the 
position in its error account and resolve the position in the manner 
described below.
    In the circumstances described above, neither the Exchange nor NOS 
may learn about an error position until T+1, either: (1) During the 
clearing process when a routing destination has submitted to OCC a 
transaction for clearance and settlement for which NOS never received 
an execution confirmation; or (2) when a routing destination does not 
recognize a transaction submitted to OCC for clearance and settlement. 
Moreover, the affected members' trade may not be nullified absent 
express authority under Exchange rules.\10\
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    \10\ See, e.g., Rule 1092.
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Proposed Amendments to Rule 1080(m)
    The Exchange proposes to amend Rule 1080(m) to add new subparagraph 
(v) to address the cancellation of orders due to technical or systems 
issues and the use of an error account by NOS.
    Specifically, under subparagraph (v)(1) of the proposed rule, the 
Exchange or NOS would be expressly authorized to cancel orders as may 
be necessary to maintain fair and orderly markets if a technical or 
systems issue occurred at the Exchange, NOS, or a routing 
destination.\11\ The Exchange or NOS would be required to provide 
notice of the cancellation to affected members as soon as practicable.
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    \11\ Such a situation may not cause the Exchange to declare 
self-help against the routing destination pursuant to Rule 
1084(b)(i). If the Exchange or NOS determines to cancel orders 
routed to a routing destination under proposed Rule 1080(m)(v), but 
does not declare self-help against that routing destination, the 
Exchange would continue to be subject to the trade-through 
requirements in the Options Order Protection and Locked/Crossed 
Markets Plan and Rule 1084 with respect to that routing destination.
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    Subparagraph (v)(2) of the proposed rule would permit NOS to 
maintain an error account for the purpose of addressing positions that 
result from a technical or systems issue at NOS, the Exchange, a 
routing destination, or a non-affiliate third-party Routing Broker that 
affects one or more orders (``error positions''). By definition, an 
error position would not include any position that results from an 
order submitted by a member to the Exchange that is executed on the 
Exchange and automatically processed for clearance and settlement on a 
locked-in basis. NOS also would not be permitted to accept any 
positions in its error account from an account of a member and could 
not permit any member to transfer any positions from the member's 
account to NOS's error account under the proposed rule.\12\ However, if 
a technical or systems issue results in the Exchange not having valid 
clearing instructions for a member to a trade, NOS may assume that 
member's side of the trade so that the trade can be processed for 
clearance and settlement on a locked-in basis.\13\
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    \12\ The purpose of this provision is to clarify that NOS may 
address error positions under the proposed rule that are caused by a 
technical or systems issue, but that NOS may not accept from a 
member positions that are delivered to the member through the 
clearance and settlement process, even if those positions may have 
been related to a technical or systems issue at NOS, the Exchange, a 
routing destination of NOS, or a non-affiliate third-party Routing 
Broker. This provision would not apply, however, to situations like 
the one described in Example C in which NOS incurred a short 
position to settle a member's purchase, as the member did not yet 
have a position in its account as a result of the purchase at the 
time of NOS's action (i.e., NOS's action was necessary for the 
purchase to settle into the member's account). Similarly, the 
provision would not apply to situations like the one described in 
Example F, where a system issue caused one member to receive an 
execution for which there was not an available contraparty, in which 
case action by NOS would be necessary for the position to settle 
into that member's account.
    \13\ See Example E above.
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    Under subparagraph (v)(3), in connection with a particular 
technical or systems issue, NOS or the Exchange would be permitted to 
either (i) assign all resulting error positions to members, or (ii) 
have all resulting error positions liquidated, as described below. Any 
determination to assign or liquidate error positions, as well as any 
resulting assignments, would be required to be made in a 
nondiscriminatory fashion.
    NOS or the Exchange would be required to assign all error positions 
resulting from a particular technical or systems issue to the 
applicable members affected by that technical or systems issue if NOS 
or the Exchange:
     Determined that it has accurate and sufficient information 
(including valid clearing information) to assign the positions to all 
of the applicable members affected by that technical or systems issue;
     Determined that it has sufficient time pursuant to normal 
clearance and settlement deadlines to evaluate the information 
necessary to assign the positions to all of the applicable members 
affected by that technical or systems issue; and
     Had not determined to cancel all orders affected by that 
technical or systems issue.
    For example, a technical or systems issue of limited scope or 
duration may occur at a routing destination, and the resulting trades 
may be submitted for clearance and settlement by such routing 
destination to OCC. If there were a small number of trades, there may 
be sufficient time to match positions with member orders and avoid 
using the error account.

[[Page 74523]]

    There may be scenarios, however, where NOS determines that it is 
unable to assign all error positions resulting from a particular 
technical or systems issue to all of the affected members, or 
determines to cancel all affected routed orders. For example, in some 
cases, the volume of questionable executions and positions resulting 
from a technical or systems issue might be such that the research 
necessary to determine which members to assign those executions to 
could be expected to extend past the normal settlement cycle for such 
executions. Furthermore, if a routing destination experiences a 
technical or systems issue after NOS has transmitted IOC orders to it 
that prevents NOS from receiving responses to those orders, NOS or the 
Exchange may determine to cancel all routed orders affected by that 
issue. In such a situation, NOS or the Exchange would not pass on to 
the members any executions on the routed orders received from the 
routing destination.
    The proposed rule also would require NOS to liquidate error 
positions as soon as practicable.\14\ In liquidating error positions, 
NOS would be required to provide complete time and price discretion for 
the trading to liquidate the error positions to a third-party broker-
dealer and could not attempt to exercise any influence or control over 
the timing or methods of trading to liquidate the error positions.\15\ 
NOS also would be required to establish and enforce policies and 
procedures reasonably designed to restrict the flow of confidential and 
proprietary information between the third-party broker-dealer and NOS/
the Exchange associated with the liquidation of the error positions.
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    \14\ If NOS determines in connection with a particular technical 
or systems issue that some error positions can be assigned to some 
affected members but other error positions cannot be assigned, NOS 
would be required under the proposed rule to liquidate all such 
error positions (including those positions that could be assigned to 
the affected members).
    \15\ This provision is not intended to preclude NOS from 
providing the third-party broker with standing instructions with 
respect to the manner in which it should handle all error account 
transactions. For example, NOS might instruct the broker to treat 
all orders as ``not held'' and to attempt to minimize any market 
impact on the price of the stock being traded.
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    Under proposed subparagraph (v)(4), NOS and the Exchange would be 
required to make and keep records to document all determinations to 
treat positions as error positions and all determinations for the 
assignment of error positions to members or the liquidation of error 
positions, as well as records associated with the liquidation of error 
positions through the third-party broker-dealer.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \16\ of 
the Securities Exchange Act of 1934 (the ``Act''), in general, and 
furthers the objectives of Section 6(b)(5),\17\ in particular, in that 
it is designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, 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, and it is not 
designed to permit unfair discrimination among customers, brokers, or 
dealers. The Exchange believes that this proposal is in keeping with 
those principles because NOS's or the Exchange's ability to cancel 
orders during a technical or systems issue and to maintain an error 
account facilitates the smooth and efficient operations of the market. 
Specifically, the Exchange believes that allowing NOS or the Exchange 
to cancel orders during a technical or systems issue would allow the 
Exchange to maintain fair and orderly markets. Moreover, the Exchange 
believes that allowing NOS to assume error positions in an error 
account and to liquidate those positions, subject to the conditions set 
forth in the proposed amendments to Rule 1080(m), would be the least 
disruptive means to correct these errors, except in cases where NOS can 
assign all such error positions to all affected members of the 
Exchange. Overall, the proposed amendments are designed to ensure full 
trade certainty for market participants and to avoid disrupting the 
clearance and settlement process. The proposed amendments are also 
designed to provide a consistent methodology for handling error 
positions in a manner that does not discriminate among members. The 
proposed amendments are also consistent with Section 6 of the Act 
insofar as they would require NOS to establish controls to restrict the 
flow of any confidential information between the third-party broker and 
NOS/the Exchange associated with the liquidation of error positions.
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    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition 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

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days after the date of the filing, or such 
shorter time as the Commission may designate, it has become effective 
pursuant to Section 19(b)(3)(A) of the Act \18\ and Rule 19b-4(f)(6) 
\19\ thereunder.
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    \18\ 15 U.S.C. 78s(b)(3)(A).
    \19\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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. 
The Exchange has satisfied this requirement.
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    Phlx has requested that the Commission waive the 30-day operative 
delay.\20\ The Commission believes that waiver of the operative delay 
is consistent with the protection of investors and the public interest. 
Such waiver would allow the Exchange, without delay, to implement the 
proposed rule change, which is designed to provide a consistent 
methodology for handling error positions in a manner that does not 
discriminate among members. The Commission also notes that the proposed 
rule change is based on, and substantially similar to, Phlx Rule 
3315(d), which the Commission recently approved.\21\ Accordingly, the 
Commission designates the proposal operative upon filing.\22\
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    \20\ 17 CFR 240.19b-4(f)(6)(iii).
    \21\ See Securities Exchange Act Release No. 67654 (August 14, 
2012), 77 FR 50187 (August 20, 2012) (SR-Phlx-2012-81).
    \22\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if

[[Page 74524]]

it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-Phlx-2012-134 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-Phlx-2012-134. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 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-Phlx-2012-134 and should be 
submitted on or before January 4, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-30168 Filed 12-13-12; 8:45 am]
BILLING CODE 8011-01-P