[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Notices]
[Pages 47471-47474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18750]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70062; File No. SR-BX-2013-042]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Permit 
the Nullification of Trades Involving Catastrophic Errors

July 30, 2013
    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 July 19, 2013, NASDAQ OMX BX, Inc. (``BX'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``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 to amend Chapter V, Section 6, Obvious 
Errors. Specifically, BX proposes to amend Section 6(f)(iii) to permit 
the nullification of trades involving catastrophic errors in certain 
situations specified below.
    The text of the proposed rule change is below; proposed new 
language is italicized; proposed deletions are in brackets.
* * * * *

NASDAQ OMX BX Rules

* * * * *

Options Rules

* * * * *

Chapter V Regulation of Trading on BX Options

* * * * *
Sec. 6 Obvious and Catastrophic Errors

    (a)-(e) No change.
    (f) Catastrophic Errors

    (i)-(ii) No change.
    (iii) Adjust or Bust. A BX Official will determine whether there 
was a Catastrophic Error as defined above. If it is determined that a 
Catastrophic Error has occurred, whether or not each party to the 
transaction is an Options Participant, MarketWatch shall adjust the 
execution price of the transaction, unless both parties agree to adjust 
the transaction to a different price, to the theoretical price (i) plus 
the adjustment value provided below for erroneous buy transactions, and 
(ii) minus the adjustment value provided for erroneous sell 
transactions, pursuant to the following chart; provided that the 
adjusted price would not exceed the limit price of a Public Customer's 
limit order, in which case the Public Customer would have 20 minutes 
from notification of the proposed adjusted price to accept it or else 
the trade will be nullified:

------------------------------------------------------------------------
                                                               Minimum
                     Theoretical price                          amount
------------------------------------------------------------------------
Below $2...................................................           $1
$2 to $5...................................................            2
Above $5 to $10............................................            3
Above $10 to $50...........................................            5
Above $50 to $100..........................................            7
Above $100.................................................           10
------------------------------------------------------------------------

    Upon taking final action, MarketWatch shall promptly notify both 
parties to the trade electronically or via telephone.
    (g) No change.
* * * * *

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 aspects of such 
statements.

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

1. Purpose
    The purpose of the proposal is to help market participants better 
manage their risk by addressing the situation where, under current 
rules, a trade can be adjusted to a price outside of a Public 
Customer's limit. Specifically, the Exchange proposes to amend Chapter 
V, Section 6(f) to enable a Public Customer who is the contra-side to a 
trade that is deemed to be a catastrophic error to have the trade 
nullified in instances where the adjusted price would violate the 
Public Customer's limit price. Only if the Public Customer, or his 
agent, affirms the customer's willingness to accept the adjusted price 
through the customer's limit price within 20 minutes of notification of 
the catastrophic error ruling would the trade be adjusted; otherwise it 
would be nullified. Today, all catastrophic error trades are adjusted, 
not nullified, on all of the options exchanges, except on NASDAQ OMX 
PHLX LLC (``PHLX''), on whose provision this proposal is modeled.\3\
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    \3\ See PHLX Rule 1092(f)(ii). Securities Exchange Act Release 
No. 69304 (April 4, 2013), 78 FR 21482 (April 10, 2013) (SR-Phlx-
2013-05).
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Background
    Currently, Chapter V, Section 6 governs obvious and catastrophic 
errors. Obvious errors are calculated under the rule by determining a 
theoretical price and determining, based on objective standards, 
whether the trade should be nullified or adjusted. The rule also 
contains a process for requesting an obvious error review. Certain more 
substantial errors may fall under the category of a catastrophic error, 
for which a longer time period is permitted to request a review and for 
which trades can only be adjusted (not nullified). Trades are adjusted 
pursuant to an adjustment table that, in effect, assesses an adjustment 
penalty. By adjusting trades above or below the theoretical price plus 
or minus a certain amount, the rule assesses a ``penalty'' in that the 
adjustment price is not as favorable as the amount the party making the 
error would have received had it not made the error.
Proposal
    At this time, the Exchange proposes to change the catastrophic 
error process to permit certain trades to be nullified. The definition 
and calculation of a catastrophic error would not change.\4\ Once a 
catastrophic error is determined by a BX Official, then if both parties 
to the trade are not a Public Customer,\5\ the

[[Page 47472]]

trade would be adjusted under the current rule. If one of the parties 
is a Public Customer, then the adjusted price would be compared to the 
limit price of the order. If the adjusted price would violate the limit 
price (in other words, be higher than the limit price if it is a buy 
order and lower than the limit price if it is a sell order), then the 
Public Customer would be offered an opportunity to nullify the trade. 
If the Public Customer (or the Public Customer's broker-dealer agent) 
does not respond within 20 minutes, the trade would be nullified.
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    \4\ Nor is the definition or process for obvious errors 
changing. However, the Exchange proposes to add reference to 
``catastrophic'' errors to the title of the provision to better 
reflect its content and match that of other options exchanges.
    \5\ Chapter I, Section 1(a)(50) defines a Public Customer as 
person that is not a broker or dealer in securities. Professional 
Customers are Public Customers, for purposes of Chapter V, Section 
6. See Chapter I, Section 1(a)(49).
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    These changes should ensure that a Public Customer is not forced 
into a situation where the original limit price is violated and thereby 
the Public Customer is forced to spend additional dollars for a trade 
at a price the Public Customer had no interest in trading and may not 
be able to afford.
    EXAMPLE 1--Resting Public Customer forced to adjust through his 
limit price and would prefer nullification

Day 1

8:00:00 a.m. (pre-market)
    Public Customer A enters order on BX to buy 10 GOOG May 750 puts 
for $25 (cost of $25,000, Public Customer has $50,000 in his trading 
account).
10:00:00 a.m.
    GOOG trading at $750
    May 750 puts $29.00-$31.00 (100x100) on all exchanges
10:04:00 a.m.
    GOOG drops to $690
    May 750 puts $25-$100 (10x10) BX
    May 750 puts $20-$125 (10x10) CBOE
    May 750 puts $10-$200 (100x100) on all other exchanges
10:04:01 a.m.
    Public Customer B enters order to sell 10 May 750 puts for $25 
(credit of $25,000)
10:04:01 a.m.
    10 May 750 puts execute at $25 ($35 under parity) \6\ with Public 
Customer A buying and Public Customer B selling.
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    \6\ Parity is the intrinsic value of an option when it is in-
the-money. With respect to puts, it is calculated by subtracting the 
price of the underlying from the strike price of the put. With 
respect to calls, it is calculated by subtracting the strike price 
from the price of the underlying.
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10:04:02 a.m. (1 second later)
    GOOG trading $690
    May 750 puts $75-$78 (100x100) BX
    May 750 puts $75-$80 (10x10) CBOE
    May 750 puts $70-$80 (100x100) All other exchanges
    No obvious error is filed within 20 minute notification time 
required by rule. If this had been an obvious error review, the trade 
would have been nullified in accordance with Chapter V, Section 6 
because one of the parties to the trade was not an Options Participant.
4:00:00 p.m. (the close)
    GOOG trading $710
    May 750 puts $60-$63 (100x100) BX
    May 750 puts $55-$70 (10x10) CBOE
    May 750 puts $50-$70 (100x100) All other exchanges

Day 2

 8:00:00 a.m. (pre-market)
    Public Customer B, submits S10 GOOG May 750 puts at $25 under 
Catastrophic Review.

    Trade meets the criteria of Catastrophic Error and is adjusted to 
$68 ($75 (the 10:04:02 a.m. price) less $7 adjustment penalty).

9:30:00 a.m. (the opening)
    GOOG trading $725
    May 750 puts open $48.00-$51.00 (100x100) on all exchanges
Under current rule:
    Without a choice, Public Customer A is forced to spend $68 (for a 
total cost of $68,000, with only $25,000 in his account)
    Puts are now trading $48, so Public Customer A shows a loss of 
$20,000 ($68 less $48x10 contracts x 100 multiplier)
Under proposed rule:
    Public Customer A would be able to choose to have the B10 GOOG May 
750 puts nullified avoiding both a loss, and an expenditure of capital 
exceeding the amount in his account. Public Customer B would be 
relieved of the obligation to sell the puts at 25 because the trade 
would be nullified.

    EXAMPLE 2--Resting Public Customer trades, sells out his position, 
and chooses to keep the adjusted trade and avoid nullification

Day 1

8:00:00 a.m. (pre-market)
    Public Customer A enters order on BX to Buy 10 BAC April 7.00 calls 
for $.01 (cost of $10 total). (Customer has $3,000 in his account).
10:00:00 a.m.
    BAC trading $11
    April 7 calls $4.50-$4.70 (100x100) on all exchanges
10:04:00 a.m.
    BAC Trading $11
    April 7 calls $.01-$4.70 (10x10) BX
    April 7 calls $4.50-$4.70 (10x10) CBOE
    April 7 calls $4.50-$4.70 (10x10) All other exchanges
10:04:01 a.m.
    Public Customer B enters order to sell 10 April 7 calls at $.01 on 
BX with an ISO indicator (which allows trade through)
10:04:01 a.m.
    10 April 7 calls execute at $.01 on BX Public Customer A buying and 
Public Customer B selling.
10:04:02 a.m. (1 second later)
    BAC is $11
    April 7 calls $4.50-$4.70 (10x10) BX
    April 7 calls $4.50-$4.70 (10x10) CBOE
    April 7 calls $4.50-$4.70 (10x10) All other exchanges
    No obvious error is filed within 20 minute notification time 
required by rule. If this had been an obvious error review, the trade 
would have qualified as an obvious error and been nullified or 
adjusted.
11:00:00 a.m.
    BAC trading $9.60
    April 7 calls $3.00-$3.25 (10x10) BX
    April 7 calls $3.00-$3.25 (10x10) CBOE
    April 7 calls $3.00-$3.25 (10x10) All other exchanges
    Public Customer A sells 10 April 7 calls at $3.00 (a total credit 
of $3,000 for a $2,990 profit)
3:00:00 p.m.
    BAC trading $12.80
    April 7 calls $5.80-$6.00 (10x10) BX
    April 7 calls $5.80-$6.00 (10x10) CBOE
    April 7 calls $5.80-$6.00 (10x10) All other exchanges
    Public Customer A has now no position and would be at risk of a 
loss if nullified.
3:20:00 p.m.
    Public Customer B submits S10 BAC April 7 calls at $.01 under 
Catastrophic Error Review.
    Trade meets the criteria of Catastrophic Error and is adjusted to 
$2.50 ($4.50 (the 10:04:02 a.m. price) less $2 adjustment penalty).
Impact:
    Under current Rule: Public Customer A would be adjusted to $2.50 
($4.50 (the 10:04:02 a.m. price) less $2 adjustment penalty).
Under Proposed rule:
    Illustrating the need for a choice, Public Customer A chooses 
within 20 minutes to accept an adjustment to $2.50 instead of a 
nullification, locking in a gain of $500 instead of $2.990 (B 10 at 
$2.50 vs. S10 at $3.00).
    If not given a choice, Public Customer A would be naked short 10 
calls at $3.00 that are now offered at $6.00 (a $3,000 loss).

    These examples illustrate the need for Public Customer to have a 
choice in

[[Page 47473]]

order to manage his risk. By applying a notification time limit of 20 
minutes, it lessens the likelihood that the customer will try to let 
the direction of the market for that option dictate his decision for a 
long period of time, thus exposing the contra side to more risk. This 
20 minute time period is akin to the notification period currently used 
in the rule respecting obvious errors (as opposed to catastrophic 
errors).\7\
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    \7\ See Chapter V, Section 6(e)(i) [sic]. If a party believes 
that it participated in a transaction that was the result of an 
Obvious Error, it must notify MarketWatch via written or electronic 
complaint within 20 minutes of the execution.
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    For a market maker or a broker-dealer, the penalty that is part of 
the price adjustment process is usually enough to offset the additional 
dollars spent, and they can often trade out of the position with little 
risk and a potential profit. For a customer who is not immersed in the 
day-to-day trading of the markets, this risk may be unacceptable. A 
customer is also less likely to be watching trading activity in a 
particular option throughout the day and less likely to be closely 
focused on the execution reports the customer receives after a trade is 
executed. Accordingly, the Exchange believes that it is fair and 
reasonable, and consistent with statutory standards, to change the 
procedure for catastrophic errors for Public Customers and not for 
other participants.
    The Exchange believes that the proposal is a fair way to address 
the issue of a customer's limit price, yet still balance the competing 
interests of certainty that trades stand versus dealing with true 
errors. Earlier this year, PHLX amended its Rule 1092(f) to adopt the 
same catastrophic error process as proposed herein. In approving that 
proposal, the Commission stated ``. . . the Exchange has weighed the 
benefits of certainty to non-broker-dealer customers that their limit 
price will not be violated against the costs of increased uncertainty 
to market makers and broker-dealers that their trades may be nullified 
instead of adjusted depending on whether the other party to the 
transaction is or is not a customer. The proposed rule change strikes a 
similar balance on this issue to the approach taken in the Exchange's 
Obvious Error Rule, whereby transactions in which an Obvious Error 
occurred with at least one party as a non-specialist are nullified 
unless both parties agree to adjust the price of the transaction within 
30 minutes of being notified of the Obvious Error.'' \8\
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    \8\ See supra note 3.
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    The Exchange is proposing to amend Chapter V, Section 6 to 
eliminate the risk associated with Public Customers receiving an 
adjustment to a trade that is outside of the limit price of their 
order, when there is a catastrophic error ruling respecting their 
trade. The new provision would continue to entail specific and 
objective procedures. Furthermore, the new provision more fairly 
balances the potential windfall to one market participant against the 
potential reconsideration of a trading decision under the guise of an 
error.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \9\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \10\ in particular, in that it is designed 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, by helping Exchange members better manage the risk associated 
with potential erroneous trades. Specifically, the Exchange believes 
that the proposal is consistent with these principles because it 
provides a fair process for Public Customers to address catastrophic 
errors involving a limit order. In particular, the proposal permits 
nullification in certain situations. Further, it gives customers a 
choice. For two reasons, the Exchange does not believe that the 
proposal is unfairly discriminatory, even though it offers some 
participants (Public Customers) a choice as to whether a trade is 
nullified or adjusted, while other participants will continue to have 
all of their catastrophic errors adjusted. First, with respect to 
obvious errors (as opposed to catastrophic errors), the rule currently 
differentiates among Participants and whether a trade is adjusted or 
busted depends on whether an Options Participant is involved.\11\ 
Second, options rules often treat customers in a special way,\12\ 
recognizing that customers are not necessarily immersed in the day-to-
day trading of the markets, less likely to be watching trading activity 
in a particular option throughout the day and may have limited funds in 
their trading accounts. Accordingly, differentiating among Participant 
types by permitting customers to have a choice as to whether to nullify 
a trade involving a catastrophic error is not unfairly discriminatory, 
because it is reasonable and fair to provide non-professional customers 
with additional options to protect themselves against the consequences 
of obvious errors.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
    \11\ See Chapter V, Section 6(e)(i).
    \12\ For example, many options exchange priority rules treat 
customer orders differently and some options exchanges only accept 
certain types of orders from customers. Most options exchanges 
charge different fees for customers.
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    The Exchange acknowledges that the proposal contains some 
uncertainty regarding whether a trade will be adjusted or nullified, 
depending on whether one of the parties is a Public Customer, because a 
person would not know, when entering into the trade, whether the other 
party is or is not a Public Customer. The Exchange believes that the 
proposal nevertheless promotes just and equitable principles of trade 
and protects investors and the public interest, because it eliminates a 
more serious uncertainty in the rule's operation today, which is price 
uncertainty. Today, a customer's order can be adjusted to a 
significantly different price, as the examples above illustrate, which 
is more impactful than the possibility of nullification. Furthermore, 
there is uncertainty in the current obvious error portion of Chapter V, 
Section 6 (as well as the rules of other options exchanges), which 
Participants have dealt with for a number of years. Specifically, 
Chapter V, Section 6(e)(i) and (ii) provide: Where each party to the 
transaction is an Options Participant, the execution price of the 
transaction will be adjusted to the prices provided in subparagraphs 
(A) and (B) below unless both parties agree to adjust the transaction 
to a different price or agree to bust the trade within ten (10) minutes 
of being notified by MarketWatch of the Obvious Error; where at least 
one party to the Obvious Error is not an Options Participant, the trade 
will be nullified unless both parties agree to an adjustment price for 
the transaction within 30 minutes of being notified by MarketWatch of 
the Obvious Error.
    Therefore, a Participant who prefers adjustments over nullification 
cannot guarantee that outcome, because, if he trades with a non-
Participant, a resulting obvious error would only be adjusted if such 
non-Participant agreed to an adjustment. This uncertainty has been 
embedded in the rule and accepted by market participants. The Exchange 
believes that this proposal, despite the uncertainty based on whether a 
Public Customer is involved in a trade, is nevertheless consistent with 
the Act, because the ability to nullify a Public Customer's trade 
involving a catastrophic error should prevent the price uncertainty 
that mandatory adjustment under the current rule creates, which should 
promote just and

[[Page 47474]]

equitable principles of trade and protect investors and the public 
interest.
    The proposal sets forth an objective process based on specific and 
objective criteria and subject to specific and objective procedures. In 
addition, the Exchange has again weighed carefully the need to assure 
that one market participant is not permitted to receive a windfall at 
the expense of another market participant that made a catastrophic 
error, against the need to assure that market participants are not 
simply being given an opportunity to reconsider poor trading decisions. 
Accordingly, the Exchange has determined that introducing a 
nullification procedure for catastrophic errors is appropriate and 
consistent with the Act.
    Consistent with Section 6(b)(8),\13\ the Exchange also believes 
that the proposal does not impose a burden on competition not necessary 
or appropriate in furtherance of the purposes of the Act, as described 
further below.
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    \13\ 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. Currently, most options 
exchanges have similar, although not identical, rules regarding 
catastrophic errors. To the extent that this proposal would result in 
BX's rule being different, market participants may choose to route 
orders to BX, helping BX compete against other options exchanges for 
order flow based on its customer service by having a process more 
responsive to current market needs. Of course, other options exchanges 
may choose to adopt similar rules. The proposal does not impose a 
burden on intra-market competition not necessary or appropriate in 
furtherance of the purposes of the Act, because, even though it treats 
different market participants differently, the Obvious Errors rule has 
always been structured that way and adding the ability for Public 
Customers to choose whether a catastrophic error trade is nullified 
does not materially alter the risks faced by other market participants 
in managing the consequences of obvious errors. Overall, the proposal 
is intended to help market participants better manage the risk 
associated with potential erroneous options trades and does not impose 
a burden on competition.

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

    No written comments were either solicited or 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 from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(ii) of the Act \14\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\15\
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    \14\ 15 U.S.C. 78s(b)(3)(a)(ii).
    \15\ 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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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or 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 email to [email protected]. Please include 
File Number SR-BX-2013-042 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-BX-2013-042. 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-BX-2013-042 and should be 
submitted on or before August 26, 2013.
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    \16\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-18750 Filed 8-2-13; 8:45 am]
BILLING CODE 8011-01-P