[Federal Register Volume 81, Number 48 (Friday, March 11, 2016)]
[Notices]
[Pages 12986-12990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05437]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77306; File No. SR-NYSEMKT-2016-31]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of 
Proposed Rule Change Amending Rule 123C--Equities To Provide for How 
the Exchange Would Determine an Official Closing Price if the Exchange 
Is Unable To Conduct a Closing Transaction

March 7, 2016.
    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 February 25, 2016, NYSE MKT LLC (the ``Exchange'' or 
``NYSE MKT'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III 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 proposes to amend Rule 123C--Equities to provide for 
how the Exchange would determine an Official Closing Price if the 
Exchange is unable to conduct a closing transaction. The proposed rule 
change is available on the Exchange's Web site at www.nyse.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 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
    The Exchange is proposing to amend its rules to specify back-up 
procedures for determining an Official Closing Price for Exchange-
listed securities if it is unable to conduct a closing transaction in 
one or more securities due to a systems or technical issue.\4\ 
Specifically, the Exchange proposes to amend Rule 123C--Equities 
(``Rule 123C'') to provide for how the Exchange would determine an 
Official Closing Price if the Exchange is impaired.
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    \4\ See NYSE press release dated July 22, 2015, available here: 
http://ir.theice.com/press-and-publications/press-releases/all-categories/2015/07-22-2015.aspx.
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    The Exchange developed this proposal in consultation with its 
affiliated exchanges, NYSE Arca, Inc. (``NYSE Arca'') and New York 
Stock Exchange LLC (``NYSE''), and the NASDAQ Stock Market LLC 
(``Nasdaq''), and took into consideration feedback from discussions 
with industry participants, including meeting the following key goals 
important to market participants:
     Providing a pre-determined, consistent solution that would 
result in a closing print to the applicable securities information 
processor (``SIP'') within a reasonable time frame from the normal 
closing time;
     Minimizing the need for industry participants to modify 
their processing of data from the SIPs; and
     Providing advance notification of the applicable closing 
contingency plan to provide sufficient time for industry participants 
to route any closing interest to an alternate venue to participate in 
that venue's closing auction.
Background
    The Exchange recently amended Rule 123C to add the definition of 
``Official Closing Price'' for all Exchange-listed securities and, once 
implemented, will disseminate to the SIP the Official Closing Price as 
an ``M'' value.\5\ In that filing, the Exchange amended Rule 
123C(1)(e)(i) to define the ``Official Closing Price'' of a security 
listed on the Exchange as the price established in a closing 
transaction under paragraphs (7) and (8) of Rule 123C of one round lot 
or more. If there is no closing transaction in a security or if a 
closing transaction is less than one round lot, the Official Closing 
Price will be the most recent last-sale eligible trade in such security 
on the Exchange on that trading day.
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    \5\ See Securities Exchange Act Release No. 76601 (Dec. 9, 
2015), 80 FR 77680 (Dec. 15, 2015) (SR-NYSEMKT-2015-98). For a 
description of all sale conditions that are reportable to the SIP, 
including the ``M'' value, see the Consolidated Tape System 
Participant Communications Interface Specification, dated November 
16, 2015, at 86, available here: https://www.ctaplan.com/publicdocs/ctaplan/notifications/trader-update/cts_input_spec.pdf.
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    The Exchange further amended Rule 123C(1)(e)(ii) to provide for how 
the Exchange would determine an Official Closing Price if the Exchange 
is unable to conduct a closing transaction in a security or securities 
due to a systems or technical issue. In such case, the Official Closing 
Price will be the last consolidated last-sale eligible trade for such 
security during regular trading hours on that trading day. The rule 
further provides that if there were no consolidated last-sale eligible 
trades in a security on a trading day when the Exchange is unable to 
conduct a closing transaction in a security or securities due to a 
systems or technical issue, the Official Closing Price of such security 
will be the prior day's Official Closing Price.
    The Exchange also amended Rule 440B(b)--Equities to provide that 
Exchange systems will not execute or display a short sale order with 
respect to a covered security at a price that is less than or equal to 
the current national best bid if the price of that security decreases 
by 10% or more, as

[[Page 12987]]

determined by the listing market for that security, from the security's 
Official Closing Price, as defined in Rule 123C as of the end of 
regular trading hours on the prior day (``Trigger Price'').
Proposed Amendments
    The Exchange proposes to amend Rule 123C(1)(e)(ii) to provide for 
the proposed new contingency plan of how the Exchange would determine 
an Official Closing Price if the Exchange is unable to conduct a 
closing transaction in a security or securities due to a systems or 
technical issue. To reflect this change, the Exchange would replace the 
current rule text in Rule 123C(1)(e)(ii).
    As proposed, Rule 123C(1)(e)(ii) would provide that if the Exchange 
determines at or before 3:00 p.m. Eastern Time that it is unable to 
conduct a closing transaction in one or more securities due to a 
systems or technical issue, the Exchange would designate an alternate 
exchange for such security or securities. The Exchange would publicly 
announce the exchange designated as the alternate exchange via Trader 
Update.\6\ In such case, the Official Closing Price of each security 
would be determined on the following hierarchy:
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    \6\ The Exchange expects that it would designate one of its 
affiliated exchanges as the alternate exchange and would designate 
Nasdaq only if its affiliated exchanges were also impacted by the 
systems or technical issue.
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     Proposed Rule 123C(1)(e)(ii)(A) would provide that the 
Official Closing Price would be the official closing price for such 
security under the rules of the designated alternate exchange. For 
example, if the Exchange designates NYSE Arca as the alternate 
exchange, the Official Closing Price would be based on NYSE Arca 
Equities Rule 1.1(ggP), which defines how NYSE Arca establishes an 
official closing price.\7\ If Nasdaq were designated as the alternate 
exchange, the Official Closing Price would be the official closing 
price established in Nasdaq Rule 4754.
    The proposed 3:00 p.m. cut off time was selected in part based on 
discussions with market participants regarding their capability to re-
direct closing-only interest in Exchange-listed securities in time to 
participate in the closing auction of an alternate venue. By 
designating an alternate exchange before 3:00 p.m. Eastern Time, the 
Exchange therefore believes that market participants would be more 
likely to have sufficient notice to direct any closing-only interest in 
Exchange-listed securities to the designated alternate exchange. By 
providing market participants sufficient time, when possible, to route 
closing-only interest to an alternate venue for participation in that 
exchange's closing auction process, that alternate exchange's closing 
auction would be more likely to result in a closing price that reflects 
market value for such security.
    If there were insufficient interest for a closing auction on the 
designated alternate exchange, the Exchange believes that the 
respective rules of NYSE Arca and Nasdaq provide for an appropriate 
hierarchy of which price to use to determine the Official Closing 
Price. For example, under NYSE Arca Rule 1.1(ggP)(1), if there is no 
closing auction of one round lot or more on a trading day, the official 
closing price under that rule is the most recent consolidated last sale 
eligible trade during Core Trading Hours on that trading day. That rule 
further provides that if there were no consolidated last sale eligible 
trades during Core Trading Hours on that trading day, NYSE Arca's 
official closing price will be the prior day's Official Closing Price. 
This hierarchy is similar to how the Exchange determines the Official 
Closing Price pursuant to Rule 123C(1)(e)(i) when there is no closing 
transaction of a round lot or more, except that in lieu of a closing 
auction, NYSE Arca uses the last consolidated last sale eligible trade 
rather than the last Exchange last-sale eligible trade.
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    \7\ NYSE Arca Equities will be filing a rule proposal to amend 
Rule 1.1(ggP)(1) to provide that the manner by which NYSE Arca 
determines the Official Closing Price under that rule for securities 
listed on NYSE Arca would also be applicable to any securities for 
which NYSE Arca conducts a closing auction, including securities 
that trade on an unlisted trading privileges basis.
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     Proposed Rule 123C(1)(e)(ii)(B) would provide if the 
designated alternate exchange does not have an official closing price 
in a security, the Official Closing price would be the volume-weighted 
average price (``VWAP'') of the consolidated last-sale eligible prices 
of the last five minutes of trading during regular trading hours up to 
the time that the VWAP is processed. The VWAP would include any closing 
transactions on an exchange and would take into account any trade 
breaks or corrections up to the time the VWAP is processed. Because the 
VWAP would include any last-sale eligible trades, busts, or corrections 
that were reported up to the time that the SIP calculates the VWAP, the 
Exchange believes that the VWAP price would reflect any pricing 
adjustments that may be reported after 4:00 p.m. ET.
    As discussed above, the manner by which exchanges calculate their 
respective official closing prices provide for an official closing 
price in the absence of a closing transaction. Accordingly, the 
Exchange believes that in circumstances when the Exchange designates an 
alternate exchange, the VWAP calculation would rarely be used to 
determine the Official Closing Price for an Exchange-listed security.
     Proposed Rule 123C(1)(e)(ii)(C) would provide that if the 
designated alternate exchange does not have an official closing price 
in a security and there were no consolidated last-sale eligible trades 
in the last five minutes of trading during regular trading hours in 
such security, the Official Closing Price would be the last 
consolidated last-sale eligible trade during regular trading hours on 
that trading day.
     Proposed Rule 123C(1)(e)(ii)(D) would provide that if the 
designated alternate exchange does not have an official closing price 
in a security and there were no consolidated last-sale eligible trades 
in a security on a trading day in such security, the Official Closing 
Price would be the prior day's Official Closing Price.
     Finally, proposed Rule 123C(1)(e)(ii)(E) would provide 
that if an Official Closing Price for a security cannot be determined 
under (A), (B), or (C) of proposed Rule 123C(1)(e)(ii) and there is no 
prior day's Official Closing Price, the Exchange would not publish an 
Official Closing Price for such security.
    The Exchange would use the hierarchy set forth in proposed Rule 
123C(e)(ii)(B)-(E) only if the designated alternate exchange did not 
disseminate an official closing price in a security. In such case, the 
proposed hierarchy is based on current Rule 123C(1)(e)(i), which 
provides that, if the Exchange is unable to conduct a closing 
transaction, the Official Closing Price will be the last consolidated 
last-sale eligible trade for such security during regular trading hours 
on that trading day, and if there were no consolidated last-sale 
eligible trades in a security, the Official Closing Price of such 
security will be the prior day's Official Closing Price. In addition, 
the Exchange proposes to add as paragraph (E) of Rule 123C(e)(ii) what 
would happen if there were no Official Closing Price published on the 
prior trading day (i.e., the Exchange would not publish an Official 
Closing Price). The Exchange believes not publishing an Official 
Closing Price would be a rare occurrence, and is most likely to occur 
for a thinly-traded security, such as a when issued security, right, or 
warrant, that has been listed for trading but does not have any 
consolidated last-sale eligible trades.
    If the Exchange determines that it is impaired before 3:00 p.m. and 
the

[[Page 12988]]

Official Closing Price for an Exchange-listed security is determined 
pursuant to proposed Rule 123C(1)(e)(ii), the SIP would publish the 
Official Closing Price for such security no differently than how the 
SIP publishes the Official Closing Price for an Exchange-listed 
security pursuant to Rule 123C(1)(e)(i).\8\ Accordingly, if the 
Official Closing Price is determined pursuant to proposed Rule 
123C(1)(e)(ii), recipients of SIP data would not have to make any 
changes to their systems because the SIP would publish the ``M'' last 
sale condition as an Exchange Official Closing Price for any impacted 
Exchange-listed securities.
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    \8\ The Operating Committees of the CTA Plan, CQ Plan, and the 
Joint Self-Regulatory Organization Plan Governing the Collection, 
Consolidation, and Dissemination of Quotation and Transaction 
Information for Nasdaq-Listed Securities Traded on Exchanges on an 
Unlisted Trading Privileges Basis approved the Impaired Market 
Contingency Plan under which the SIPs would print an impaired 
primary listing exchange's contingency Official Closing Price as the 
Official Closing Price of that primary listing exchange as provided 
for in the rules of respective primary listing exchanges.
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    As further proposed, Rule 123C(1)(e)(iii) would describe how the 
Exchange would determine the Official Closing Price for a security if 
the Exchange determines after 3:00 p.m. Eastern Time that it is unable 
to conduct a closing transaction in one or more securities due to a 
systems or technical issue. Based on input from market participants, 
the Exchange believes that, if the Exchange were to announce after 3:00 
p.m. Eastern Time that it is impaired and unable to conduct a closing 
transaction, market participants would not have sufficient time to re-
direct closing-only orders to an alternate venue. The proposed 
hierarchy would be similar to proposed Rule 123C(1)(e)(ii), but would 
not contemplate a closing transaction on a designated alternate 
exchange. Accordingly, in such scenario, the Exchange proposes to use 
the following hierarchy for determining the Official Closing Price for 
a security:
     Proposed Rule 123C(1)(e)(iii)(A) would provide that the 
Official Closing Price would be the VWAP of the consolidated last-sale 
eligible prices of the last five minutes of trading during regular 
trading hours up to the time that the VWAP is processed, including any 
closing transactions on an exchange. The VWAP would take into account 
any trade breaks or corrections up to the time of the VWAP is 
processed. This VWAP would be calculated in the same manner as set 
forth in proposed in Rule 123C(1)(e)(ii)(B), described above. However, 
if the Exchange's determination that it is unable to conduct a closing 
transaction is after 3:00 p.m. ET, the proposed VWAP calculation would 
be the primary means for determining the Official Closing Price for a 
security. In such case, the Exchange believes that the VWAP would 
appropriately reflect the pricing of a security because it would 
include, in a volume-weighted manner, the price and volume of closing 
transactions on other exchanges if market participants are able to 
route closing interest in Exchange-listed securities to an alternate 
venue for participation in a closing auction.
     Proposed Rule 123C(1)(e)(iii)(B) would provide that if 
there were no consolidated last-sale eligible trades in the last five 
minutes of trading during regular trading hours in such security, the 
Official Closing Price would be the last consolidated last-sale 
eligible trades during regular trading hours on that trading day. This 
proposed rule text is the same as proposed Rule 123C(1)(e)(ii)(C).
     Proposed Rule 123C(1)(e)(iii)(C) would provide that if 
there were no consolidated last-sale eligible trades in such security 
on a trading day, the Official Closing Price would be the prior day's 
Official Closing Price. This proposed rule text is the same as proposed 
Rule 123C(1)(e)(ii)(D).
     Finally, proposed Rule 123C(1)(e)(iii)(D) would provide 
that if an Official Closing Price for a security cannot be determined 
under (A), (B), or (C) of proposed Rule 123C(1)(e)(iii) and there is no 
prior day's Official Closing Price, the Exchange would not publish an 
Official Closing Price for such security. This proposed rule text is 
based on proposed Rule 123C(1)(e)(ii)(E).
    Similar to how the Official Closing Price would be published under 
proposed Rule 123C(1)(e)(ii), if the Exchange determines that it is 
impaired after 3:00 p.m. and the Official Closing Price is determined 
pursuant to proposed Rule 123C(1)(e)(iii), the SIP would publish the 
Official Closing Price for such security no differently than how the 
SIP publishes the Official Closing Price for an Exchange-listed 
security pursuant to Rule 123C(1)(e)(i). Accordingly, if the Official 
Closing Price is determined pursuant to proposed Rule 123C(1)(e)(iii), 
recipients of SIP data would not have to make any changes to their 
systems because the SIP would publish the ``M'' last sale condition as 
an Exchange Official Closing Price for any impacted Exchange-listed 
securities.
    For purposes of Rule 440B(b)--Equities, the Official Closing Price 
would still be determined based on Rule 123C and if the market is 
impaired, the Official Closing Price as defined in proposed Rules 
123C(1)(e)(ii) and (iii) would be used for purposes of determining 
whether a Short Sale Price Test is triggered in a security the next 
trading day.
    Because of the technology changes associated with this proposed 
rule change, the Exchange will implement the proposed back-up 
procedures for determining an Official Closing Price no later than 120 
days after approval of this proposed rule change and will announce the 
implementation date via Trader Update.
2. Statutory Basis
    The Exchange believes that the proposed rule change 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 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, and to remove impediments to and perfect 
the mechanism of a free and open market and a national market system.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system because it would provide transparency in how 
the Exchange would determine the Official Closing Price in Exchange-
listed securities when the Exchange is unable to conduct a closing 
transaction due to a systems or technical issue. The Exchange believes 
that the proposed amendments would remove impediments to and perfect 
the mechanism of a free and open market and a national market system 
because the proposed determination of an Official Closing Price was 
crafted in response to input from industry participants and would:
     Provide a pre-determined, consistent solution that would 
result in a closing print to the SIP within a reasonable time frame 
from the normal closing time;
     minimize the need for industry participants to modify 
their processing of data from the SIP; and
     provide advance notification of the applicable closing 
contingency plan to provide sufficient time for industry participants 
to route any closing interest

[[Page 12989]]

to an alternate venue to participate in that venue's closing auction
    More specifically, the Exchange believes the proposed hierarchy for 
determining the Official Closing Price if the Exchange determines that 
it is impaired before 3:00 p.m. Eastern Time would remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system because the proposal, which is based on input from market 
participants, would provide sufficient time for market participants to 
direct closing-only interest to a designated alternate exchange in time 
for such interest to participate in a closing auction on such alternate 
venue in a meaningful manner. The Exchange further believes that 
relying on the official closing price of a designated alternate 
exchange would provide for an established hierarchy for determining an 
Official Closing Price for an Exchange-listed security if there is 
insufficient interest to conduct a closing auction on the alternate 
exchange. In such case, the rules of NYSE Arca and Nasdaq already 
provide a mechanism for determining an official closing price for 
securities that trade on those markets.
    The Exchange further believes that if the Exchange determines after 
3:00 p.m. that it is impaired and unable the [sic] conduct a closing 
transaction, the proposed VWAP calculation would remove impediments to 
and perfect the mechanism of a free and open market and a national 
market system because it would provide for a mechanism to determine the 
value of an affected security for purposes of determining an Official 
Closing Price. By using a volume-weighted calculation that would 
include the closing transactions on an affected security on alternate 
exchanges as well as any busts or corrections that were reported up to 
the time that the SIP calculates the value, the Exchange believes that 
the proposed calculation would reflect the correct price of a security. 
In addition, by using a VWAP calculation rather than the last 
consolidated last-sale eligible price as of the end of regular trading 
hours, the Exchange would reduce the potential for an anomalous trade 
that may not reflect the true price of a security from being set as the 
Official Closing Price for a security.
    The Exchange further believes that the proposed rule change would 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system because the proposal would have 
minimal impact on market participants. As proposed, from the 
perspective of market participants, even if the Exchange were impaired, 
the SIP would publish an Official Closing Price for Exchange-listed 
securities on behalf of the Exchange in a manner that would be no 
different than if the Exchange were not impaired. If the Exchange 
determines that it is impaired after 3:00 p.m., market participants 
would not have to make any system changes. If the Exchange determines 
that it is impaired before 3:00 p.m. Eastern Time and designates an 
alternate exchange, market participants may have to do systems work to 
re-direct closing-only orders to the alternate exchange. However, the 
Exchange understands, based on input from market participants, that 
such changes would be feasible based on the amount of advance notice. 
In addition, the Exchange believes that designating an alternate 
exchange when there is sufficient time to do so would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system because it would allow for the price-discovery 
mechanism of a closing auction to be available for impacted Exchange-
listed securities.

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. The proposed rule change is 
not designed to address any competitive issues, but rather to provide 
for how the Exchange would determine an Official Closing Price for 
Exchange-listed securities if it is impaired and cannot conduct a 
closing transaction due to a systems or technical issue. The proposal 
has been crafted with input from market participants, Nasdaq, and the 
SIPs, and is designed to reduce the burden on competition by having 
similar back-up procedures across all primary listing exchanges if such 
exchange is is [sic] impaired and cannot conduct a closing transaction.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or up to 90 days (i) as the Commission may designate 
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 or disapprove the 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 email to [email protected]. Please include 
File Number SR-NYSEMKT-2016-31 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2016-31. 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

[[Page 12990]]

information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEMKT-2016-31 and should be submitted 
on or before April 1, 2016.
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    \11\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-05437 Filed 3-10-16; 8:45 am]
 BILLING CODE 8011-01-P