Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval to a Proposed Rule Change and Amendment No. 1 Thereto Relating To Adoption of Regulation NMS, 59179-59184 [E6-16582]
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Federal Register / Vol. 71, No. 194 / Friday, October 6, 2006 / Notices
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54549; File No.
SR–NYSEArca–2006–59]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and Order
Granting Accelerated Approval to a
Proposed Rule Change and
Amendment No. 1 Thereto Relating To
Adoption of Regulation NMS
September 29, 2006.
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
September 14, 2006, NYSE Arca, Inc.,
through its wholly owned subsidiary
NYSE Arca Equities, Inc. (‘‘NYSE Arca’’
or the ‘‘Exchange’’), filed with the
Securities and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 3 and Rule 19b–4
thereunder,4 a proposed rule change to
amend its rules to conform them to the
requirements of Regulation NMS under
the Act (‘‘Regulation NMS’’).5 On
September 29, 2006, the Exchange filed
Amendment No. 1 to the proposed rule
change.6 The proposed rule change, as
amended, is described in Items I and II
below, which Items have been prepared
by the Exchange. The Commission is
publishing this notice to solicit
comments on the proposed rule change,
as amended, from interested persons
and is approving the proposal on an
accelerated basis.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
NYSE Arca proposes to amend its
rules to conform them to the
requirements of the Commission’s
Regulation NMS,7 including Rule 611 of
Regulation NMS and Rule 610 of
Regulation NMS. In addition, the
Exchange proposes the adoption of
other Regulation NMS order types, to
utilize Regulation NMS terms, for
example, ‘‘Protected Bid,’’ ‘‘Protected
Offer’’ and ‘‘Protected Quotation,’’ and
to add an additional term, ‘‘Protected
Best Bid and Offer’’ (‘‘PBBO’’), which
mirrors the concept of the NBBO for
Protected Quotes. Finally, the Exchange
proposes that this rule filing shall
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1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 15 U.S.C. 78s(b)(1).
4 17 CFR 240.19b–4.
5 17 CFR 242.600 et seq.
6 See Form 19b–4 dated September 28, 2006
(‘‘Amendment No. 1’’). Amendment No. 1 replaces
and supersedes the original filing in its entirety.
7 17 CFR 242.600, et seq.
2 17
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become effective on February 5, 2007,
the Trading Phase Date under
Regulation NMS.8 The text of the
proposed rule change is available at the
Commission’s Public Reference Room,
at the Exchange, and on the Exchange’s
Web site at https://www.nysearca.com.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
NYSE Arca included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change, as amended. The
text of these statements may be
examined at the places specified in Item
III below. NYSE Arca 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
NYSE Arca is submitting this rule
change to bring its rules into conformity
with Regulation NMS.9 NYSE Arca
proposes revisions to and the adoption
of certain definitions to conform its
rules to Regulation NMS. In addition,
Rule 611 of Regulation NMS requires
the Exchange to adopt certain order
types that the Exchange proposes to
begin utilizing upon the Trading Phase
Date.
a. Trading Features of NYSE Arca and
Rule 611 of Regulation NMS
NYSE Arca proposes to adopt certain
trading features to conform to
8 The date the Commission has set for automated
trading centers to be in compliance with Rule 611
of Regulation NMS is February 5, 2007 (‘‘Trading
Phase Date’’). See Securities Exchange Act Release
No. 53829 (May 18, 2006), 71 FR 30038 (May 24,
2006).
9 On June 9, 2005, the Commission issued its
Regulation NMS Release. See Securities Exchange
Act Release No. 51808 (June 9, 2005), 70 FR 37495
(June 29, 2005). Regulation NMS adopted, among
other things, the Order Protection Rule, requiring
trading centers to establish, maintain and enforce
written policies and procedures reasonably
designed to prevent the execution of trades at prices
inferior to protected quotations displayed by
automated trading centers, subject to applicable
exceptions. Regulation NMS also adopted an Access
Rule, which: requires fair and non-discriminatory
access to quotations; establishes a limit on access
fees to harmonize the pricing of quotations across
different trading centers; and requires NYSE Arca
to adopt, maintain and enforce written rules that
prohibit its members from engaging in a pattern or
practice of displaying any quotations that lock or
cross protected quotations disseminated pursuant to
an effective National Market System Plan (‘‘NMS
Plan’’).
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59179
Regulation NMS requirements,
including:
i. Quotations and Other Regulation NMS
Definitions
The Exchange proposes to adopt
certain Regulation NMS definitions for
quotations such as ‘‘Protected Bid,’’
‘‘Protected Offer,’’ ‘‘Best Protected Bid,’’
‘‘Best Protected Offer,’’ and ‘‘Protected
Quotation.’’ 10 The Exchange also
proposes to add the definition of
‘‘Protected Best Bid and Offer’’
(‘‘PBBO’’) 11 to distinguish Protected
NBBO quotes in order to satisfy Rule
611 of Regulation NMS. The terms
‘‘Protected Bid,’’ 12 ‘‘Protected Offer’’ 13
and ‘‘Protected Quotation’’ 14 refer to
automated quotations in NMS
securities 15 that are displayed by
‘‘Trading Centers,’’ disseminated
pursuant to an effective national market
system plan, and which are the best bid,
offer or both bid and offer, respectively,
of a national securities exchange or a
national securities association.16 The
terms ‘‘Best Protected Bid,’’ ‘‘Best
Protected Offer’’ will replace the
references to the national best bid and
national best offer for all automated
quotations, and ‘‘Protected Best Bid and
Offer’’ (‘‘PBBO’’) 17 will replace the
references to the NBBO for all
automated quotations.
The Exchange will also utilize the
terms ‘‘Automated Trading Center,’’ 18
‘‘Automated Quotation,’’ 19 and
‘‘Manual Quotation’’ 20 as defined by
Regulation NMS.21 A ‘‘Trading Center’’
includes not only Exchange and SRO
trading facilities, but also Automated
Trading Systems, exchange and OTC
Market Makers and any other broker/
dealer that internalizes or crosses
orders.22
The Exchange also proposes other
Regulation NMS terms including
‘‘Effective National Market System
Plan,’’ and ‘‘Regular Trading Hours,’’ 23
both of which terms shall have the
meanings set forth in Rule 600(b) of
Regulation NMS, and ‘‘TradeThrough,’’ 24 which shall mean the
10 See
proposed NYSE Arca Rule 1.1(dd).
proposed NYSE Arca Rule 1.1(eee).
12 17 CFR 242.600(b)(57).
13 17 CFR 242.600(b)(57).
14 17 CFR 242.600(b)(58).
15 As defined in Rule 600(b)(3) of Regulation
NMS. 17 CFR 242.600(b)(3).
16 See proposed NYSE Arca Rule 1.1(eee).
17 See proposed NYSE Arca Rule 1.1(dd).
18 17 CFR 242.600(b)(4).
19 17 CFR 242.600(b)(3).
20 17 CFR 242.600(b)(37).
21 See proposed NYSE Arca Rule 1(eee).
22 See proposed NYSE Arca Rule 1.1(ggg).
23 See proposed NYSE Arca Rule 1.1(hhh).
24 See proposed NYSE Arca Rule 1.1(fff).
11 See
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purchase or sale of an NMS stock during
regular trading hours, either as principal
or agent, at a price that is lower than a
Protected Bid or higher than a Protected
Offer.
ii. Order Routing
Consistent with the adoption of the
Order Protection Rule, NYSE Arca
proposes to clarify how certain of its
existing order types will function in the
Regulation NMS environment,
including the Limit, Inside Limit,
Market, Cross, and Q Orders, as
explained further below. The Exchange
also proposes additional clarity on how
Auction functions will work within the
Regulation NMS environment. For
Inside Limit, Pegged and Market orders,
the rules will continue to provide that
they shall not be executed outside of the
NBBO.25
Limit Orders
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Limit Orders, Reserve Limit Orders,
and Discretion Limit Orders, will be
routed to Protected Quotations, but not
to Manual Quotations. These limit
orders may lock, cross, and tradethrough a Manual Quotation without a
requirement to route away.26
Post No Preference (‘‘PNP’’) Orders
and PNP Directed Orders will never
route away and will be posted in the
NYSE Arca book if partially executed on
the Exchange. PNP Orders may lock,
cross or trade-through a Manual
Quotation without a requirement to
route.27
Immediate or Cancel (‘‘IOC’’) Orders
will never route away. IOC Orders will
be permitted to trade-through a Manual
Quotation.28
NOW Orders if routed away will be
routed to Protected Quotations.29 When
eligible, Pegged Limit Orders will be
routed to Protected Quotations and
Manual Quotations representing (and
pegged off of) the NBBO.30
Intermarket Sweep Orders with an
Immediate-or-Cancel designation (‘‘ISO
IOC’’) and ISO Post no Preference (‘‘ISO
PNP’’) Limit Orders will never be routed
to either an Automated or Manual
Quotation and may lock, cross and
trade-through both Manual Quotations
and Protected Quotations without
routing if the User has complied with
proposed NYSE Arca Rule
25 See
NYSE Arca Rules 7.31(a), (d) and (cc).
proposed NYSE Arca Rule 7.31(b)(1);
proposed NYSE Arca Rule 7.31(h)(3)(C); and
proposed NYSE Arca Rule 7.31(h)(2)(B).
27 See proposed NYSE Arca Rule 7.31(w).
28 See proposed NYSE Arca Rule 7.31(e)(3).
29 See proposed NYSE Arca Rule 7.31(v).
30 See proposed NYSE Arca Rule 7.37.
26 See
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7.37(e)(3)(C).31 These orders will require
specific tape indicators if executed
under the exemptions provided in Rule
611(b) of Regulation NMS.
Inside Limit Orders
Inside Limit and Pegged Orders will
be routed to Protected Quotations
representing the NBBO.32 PNP Inside
Limit and IOC Inside Limit Orders will
never be routed to either Automated or
Manual Quotations. PNP Inside Limit
Orders, however, cannot lock or cross
Manual Quotations.33 NOW Inside
Limit Orders will be routed to Protected
Quotations.34
Market Orders
When eligible, Market Orders will be
routed to both Automated and Manual
Quotations.35
Cross Orders
Cross Orders, including Cross and
Post Orders, will be routed to a
Protected Quotation if needed,36 but
each will be identified as an ISO IOC
sent to the Protected Quotation
market.37 A Cross Order may tradethrough a Manual Quotation without
routing.38 A Cross and Post Order may
lock and cross Manual Quotations, and
may trade-through Manual
Quotations.39 Unless marked ISO,
however, the Cross Order and the Cross
and Post Orders may not trade-through
Protected Quotations.40 PNP and IOC
Crosses may trade-through Manual
Quotations.41
Q Orders
All Q Orders will never be routed, but
each may lock, cross and trade-through
Manual Quotations.42
iii. New Limit Order Types
The Exchange proposes to add new
order types that will be consistent with
Regulation NMS. The new order types
are ‘‘Intermarket Sweep Orders’’ or
(‘‘ISO’’),43 which is a limit order for an
NMS stock that meets the requirements
of Rule 600(b)(30) of Regulation NMS,44
an ‘‘ISO IOC Order,’’ which contains the
31 See proposed NYSE Arca Rule 7.37(g)(2) and
Proposed NYSE Arca Rule 7.31(w).
32 See proposed NYSE Arca Rule 7.37(d)(2)(A).
33 See proposed NYSE Arca Rule 7.31(w).
34 See proposed NYSE Arca Rule 7.31(v).
35 See proposed NYSE Arca Rule 7.37(d)(2)(A).
36 See proposed NYSE Arca Rule 7.31(s)(2).
37 See proposed NYSE Arca Rule 7.31(s)(6).
38 See proposed NYSE Arca Rule 7.31(s).
39 See proposed NYSE Arca Rule 7.31(s)(3).
40 See proposed NYSE Arca Rule 7.31(s)(3) and
(4).
41 See proposed NYSE Arca Rule 7.31(s)(4).
42 See proposed NYSE Arca Rule 7.31(k).
43 See proposed NYSE Arca Rule 7.31(jj).
44 17 CFR 242.600(b)(3).
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attributes of the ISO order, but which
will provide that any remaining balance
in the order not executed would be
automatically cancelled,45 an ‘‘ISO
Order designated as PNP,’’ which will
provide for limit orders that are to be
executed in whole or in part at the
Exchange, but which may lock and cross
and trade-through Manual and Protected
Quotations but only if the User has
complied with proposed NYSE Arca
Rule 7.37(e)(3)(C),46 ‘‘ISO IOC Cross’’
orders, which may trade-through
Protected Quotations,47 and ‘‘ISO PNP
Cross and Post’’ orders, which may
trade-through Protected Quotations, and
may lock and cross any quotes, but only
if the User has complied with proposed
NYSE Arca Rule 7.37(e)(3)(C).’’ 48
iv. Auctions
NYSE Arca Rule 7.35 provides for
certain Auction sessions, including the
Opening, Market Order, Halt and
Closing Auctions. For purposes of
Regulation NMS, the Exchange will not
route orders designated for these
Auctions to any away markets. In
addition, orders designated for these
Auctions may trade-through any away
market pursuant to the exemptions in
Rule 611 of Regulation NMS,49 if the
transaction that constituted the tradethrough was a single-priced opening,
reopening, or closing transaction by the
trading center. Any trade-through
execution will be designated with the
appropriate trade modifier as defined by
the transaction reporting plans.
b. Exceptions to Locking/Crossing and
Trade-Throughs
The Exchange proposes specific tradethrough restrictions, including how
orders are handled at NYSE Arca or
transmitted to another Trading Center
based upon the Order Protection Rule.
The Exchange’s systems will prevent the
execution of all or a part of an inbound
order if the execution of all or a part of
the order would violate the Rule 611 of
Regulation NMS. NYSE Arca proposes
the following exceptions:
(1) The ‘‘Locking Quotation’’ or
‘‘Crossing Quotation’’ 50 was displayed
at a time when the Trading Center
displaying the locked or crossed
quotation was experiencing a failure,
material delay, or malfunction of its
systems or equipment.51 This is known
as the ‘‘self-help exception,’’ discussed
further below. The term ‘‘Crossing
45 See
proposed NYSE Arca Rule 7.37(g)(2).
proposed NYSE Arca Rule 7.31(w).
47 See proposed NYSE Arca Rule 7.31(s)(5)(A).
48 See proposed NYSE Arca Rule 7.31(s)(5)(B).
49 See proposed NYSE Arca Rule 7.35(h).
50 See proposed NYSE Arca Rule 7.37(e).
51 See proposed NYSE Arca Rule 7.37(e)(3)(A).
46 See
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Quotation’’ 52 will be defined as the
display of a bid for an NMS stock during
regular trading hours at a price that is
higher than the displayed offer for such
NMS stock previously disseminated
pursuant to an effective national market
system plan, or the display of an offer
for an NMS stock during regular trading
hours at a price that is lower than the
displayed price of a bid for such NMS
stock previously disseminated pursuant
to an effective national market system
plan. The term ‘‘Locking Quotation’’ 53
will be defined as the display of a bid
for an NMS stock during regular trading
hours at a price that equals the
displayed price of an offer for such NMS
stock previously disseminated pursuant
to an effective national market system
plan, or the display of an offer for an
NMS stock during regular trading hours
at a price that equals the displayed price
of a bid for such NMS stock previously
disseminated pursuant to an effective
national market system plan.
(2) The Crossing Quotation was
displayed at a time when a Protected
Bid was higher than a Protected Offer in
the NMS stock.54
(3) The Locking or Crossing Quotation
was an Automated Quotation, and the
User of the Exchange displaying such
Automated Quotation simultaneously
routed an ISO to execute against the full
displayed size of any locked or crossed
Protected Quotation.55
NYSE Arca believes that its
disseminated quotations would
constitute Automated Quotations under
the definition set out in Rule 600(b)(3)
of Regulation NMS,56 and for that
reason has not submitted rules regarding
Manual Quotations of its participants.
52 See
proposed NYSE Arca Rule 7.37(e)(1)(A).
proposed NYSE Arca Rule 7.37(e)(1)(B).
54 See proposed NYSE Arca Rule 7.37(e)(3)(B).
55 See proposed NYSE Arca Rule 7.37(e)(3)(C).
56 The definition of automated trading center in
Rule 600(b)(4) of Regulation NMS, 17 CFR
242.600(b)(4), requires, among other things, that a
trading center (1) implement such systems,
procedures and rules as are necessary to render it
capable of meeting the requirements for automated
quotations, as defined in Rule 600(b)(3) of
Regulation NMS, 17 CFR 242.600(b)(3); and (2)
immediately identify its quotations as manual
whenever it has reason to believe it is not capable
of displaying automated quotations. The definition
of automated quotation requires, among other
things, that a trading center provide an immediate
response to incoming IOC orders and immediately
update its quotations. NYSE Arca is designed to
accept IOC orders, to immediately and
automatically execute an IOC order against the
displayed BBO up to its full size; to immediately
and automatically cancel any unexecuted portion of
the IOC order without routing the order elsewhere;
to immediately and automatically transmit a
response to the order-sending participant indicating
the action taken on the order; and to immediately
and automatically update the BBO to reflect any
change that occurred as a result of the execution.
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53 See
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i. Additional Exceptions
Self Help
The Exchange proposes to utilize the
‘‘self-help’’ exception to any tradethrough of a Protected Quotation
displayed by a Trading Center that is
experiencing a failure, material delay, or
malfunction of its systems or
equipment.57 The Exchange will be able
to ignore another Trading Center’s bid
and offer if the other Trading Center has
repeatedly failed to respond within one
second to an incoming IOC order after
adjusting for order transmission time. In
these instances, Protected Quotations
may be bypassed by: (a) notifying the
non-responding Trading Center
immediately after (or at the same time
as) electing self-help; 58 (b) assessing
whether the cause of the problem lies
with the Exchange’s own systems and,
if so, taking immediate steps to resolve
the problem; and (c) developing
objective parameters for monitoring and
utilizing this exception.
For purposes of utilizing self-help
when effecting a trade-through of a
Protected Quotation displayed by a
Trading Center, NYSE Arca proposes to
use mechanisms such as e-mail or other
mechanisms that may be determined
between Trading Centers. Generally, the
NYSE Arca Systems procedures will
allow for the disregard of Protected
Quotations of a market against which
the Exchange has elected self-help, and
all trades executed under this exception
will be marked with the appropriate
identifier specified by the relevant NMS
Plan.
Should NYSE Arca determine that the
problem lies within its own system or
with its connection to the other Trading
Center, NYSE Arca shall no longer rely
on the self-help exception and shall
notify the other Trading Center that the
Exchange is no longer claiming the
exception.59
Intermarket Sweep Order Exception
The Exchange proposes to add new a
new rule to provide that ISOs may, by
their definition, trade-through Protected
Quotations when the Exchange has
simultaneously routed an ISO to execute
against the full displayed size of that
Protected Quotation.60 NYSE Arca will
accept ISO orders to be executed against
orders at the Exchange’s Protected
Quotation without regard to whether the
execution will trade-through another
market’s Protected Quotation under the
assumption that the ISO being routed
proposed NYSE Arca Rule 7.37(f)(1).
proposed NYSE Arca Rule 7.37(f)(1)(A).
59 See proposed NYSE Arca Rule 7.37(f)(1)(B).
60 See proposed NYSE Arca Rule 7.37(g)(1).
has already satisfied the Protected
Quotations of other Trading Centers.
The NYSE Arca System may also lock
or cross an away Protected Quotation if
the System has first routed an order to
that quotation and all better priced
quotations for their full displayed size.
The Exchange proposes to add a new
rule to provide that if an ISO is marked
as ‘‘immediate or cancel,’’ any
remaining balance in the order will be
automatically cancelled.61 If an ISO is
not marked as ‘‘immediate or cancel,’’
any remaining balance in the order
would be displayed by the Exchange
without regard to whether that display
would lock or cross another market
center, only if the participant routing
the order has already sent an order to
satisfy the quotations of other markets
so that the display of the order would
not lock or cross those markets.
Single-Price Openings, Reopenings, and
Closing Transactions
The Exchange proposes to add a new
rule to provide that a transaction that
constituted the trade-through is
excepted from the Order Protection Rule
if it was a single-priced opening,
reopening, or closing transaction by the
Exchange.62 NYSE Arca will conduct a
formalized and transparent process for
executing orders during reopening after
a trading halt that involves the queuing
and ultimate execution of multiple
orders at a single equilibrium price.63
Benchmark Trades
The Exchange proposes to add a new
rule to provide for the execution of
volume-weighted average price
(‘‘VWAP’’) orders, as well as other types
of orders that are not priced with
reference to the quoted price of the NMS
stock at the time of execution and for
which the material terms were not
reasonably available at the time the
commitment to execute the order was
made. Benchmark Trades will not be
allowed to trade-through the NYSE Arca
Book.64
Stopped Orders
The Exchange proposes to add a new
rule to provide that an exception for
stopped orders will apply when the
price of the execution of the stopped
order was lower (for a buy order) than
the best Protected Bid at the time of
execution, or was higher (for a sell
order) than the best Protected Offer at
the time of execution. This exception is
contingent upon the User having agreed
57 See
61 See
58 See
62 See
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59181
proposed NYSE Arca Rule 7.37(g)(2).
proposed NYSE Arca Rule 7.37(g)(3).
63 See proposed NYSE Arca Rule 7.35(f).
64 See proposed NYSE Arca Rule 7.37(g)(4).
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to the stop price for each order. Stopped
Orders will not be allowed to tradethrough the NYSE Arca Book.65
Transactions Other Than ‘‘RegularWay’’ Contracts
The Exchange proposes to add a new
rule to provide that transactions that are
executed other than pursuant to
standardized terms and conditions, such
as transactions that have extended
settlement terms, also are excepted from
the Order Protection Rule.66
ii. Exemptions from 611(d) of
Regulation NMS
The Commission exempted from the
provisions of Rule 611 of Regulation
NMS trade-throughs 67 caused by the
execution of an order involving one or
more NMS stocks that are components
of a qualified contingent trade.68 The
Exchange therefore proposes to adopt
that same exemption as a part of its
Rules.
c. Locked/Crossed Markets
In order to satisfy NMS restrictions on
locked and crossed markets, NYSE Arca
has proposed additional rules regarding
Crossing Quotations and Locking
Quotations. The Exchange addresses
intentional locks/crosses by requiring
that all locks/crosses of Protected
Quotations be reasonably avoided, and
prohibiting a pattern or practice of
displaying any quotations that lock or
cross a Protected Quotation pursuant to
an effective national market system
plan. There is no restriction on the
display of automated quotations that
lock or cross Manual Quotations.
Inevitably, unintentional locks/crosses
will continue to occur even after
adoption of the Rule, often because of
rapid updating of quotations in active
stocks.
2. Statutory Basis
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The proposed rule change is
consistent with Section 6(b) of the
Act,69 in general, and furthers the
objectives of Section 6(b)(5) 70 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
65 See
proposed NYSE Arca Rule 7.37(g)(5).
proposed NYSE Arca Rule 7.37(g)(6).
67 17 CFR 242.611(d).
68 See Securities Exchange Act Release No. 34–
54389 (August 31, 2006).
69 15 U.S.C. 78f(b).
70 15 U.S.C. 78f(b)(5).
66 See
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mechanisms of a free and open market
and a national market system.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
Written comments on the proposed
rule change were neither solicited nor
received.
the principal office of NYSE Arca. 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–NYSEArca–2006–59 and
should be submitted on or before
October 27, 2006.
IV. Discussion of Commission Findings
and Order Granting Accelerated
Approval of Proposed Rule Change
After careful review, the Commission
finds that the proposed rule change, as
amended, is consistent with the
requirements of the Act and the rules
III. Solicitation of Comments
and regulations thereunder applicable to
Interested persons are invited to
a national securities exchange and, in
submit written data, views, and
particular, the requirements of Section 6
arguments concerning the proposed rule
of the Act 71 and the rules and
change, as amended, including whether
regulations thereunder applicable to a
the proposed rule change, as amended,
national securities exchange.72 The
is consistent with the Act. Comments
Commission finds that the proposed
may be submitted by any of the
rule change, as amended, is consistent
following methods:
with Section 6(b)(5) of the Act 73 in that
it is designed to prevent fraudulent and
Electronic Comments
manipulative acts and practices, to
• Use the Commission’s Internet
promote just and equitable principles of
comment form (https://www.sec.gov/
trade, to remove impediments to and
rules/sro.shtml); or
perfect the mechanism of a free and
• Send an e-mail to ruleopen market and a national market
comments@sec.gov. Please include File
Number SR–NYSEArca–2006–59 on the system, and, in general, to protect
investors and the public interest.
subject line.
Pursuant to Section 19(b)(2) of the
Paper Comments
Act,74 the Commission may not approve
any proposed rule change, or
• Send paper comments in triplicate
amendment thereto, prior to the
to Nancy M. Morris, Secretary,
thirtieth day after the date of
Securities and Exchange Commission,
publication of the notice thereof, unless
100 F Street, NE., Washington, DC
the Commission finds good cause for so
20549–1090.
All submissions should refer to File
doing. As set forth below, the
Number SR–NYSEArca–2006–59. This
Commission finds good cause for
file number should be included on the
approving the proposed rule change
subject line if e-mail is used. To help the prior to the thirtieth day after
Commission process and review your
publishing notice thereof in the Federal
comments more efficiently, please use
Register pursuant to Section 19(b)(2) of
only one method. The Commission will the Act.75 The proposed amendments to
post all comments on the Commission’s NYSE Arca’s rules are substantially
Internet Web site (https://www.sec.gov/
similar to rules of other exchanges that
rules/sro.shtml). Copies of the
were designed to comply with
submission, all subsequent
Regulation NMS and have been
amendments, all written statements
published for comment and approved
with respect to the proposed rule
by the Commission.76 In this regard, as
change that are filed with the
71 15 U.S.C. 78f.
Commission, and all written
72 In approving this proposed rule change, the
communications relating to the
Commission has considered the proposed rule’s
proposed rule change between the
impact on efficiency, competition, and capital
Commission and any person, other than formation. See 15 U.S.C. 78c(f).
73 15 U.S.C. 78f(b)(5).
those that may be withheld from the
74 15 U.S.C. 78s(b)(2).
public in accordance with the
75 Id.
provisions of 5 U.S.C. 552, will be
76 See Securities Exchange Act Release No. 54391
available for inspection and copying in
(August 31, 2006), 71 FR 52836 (September 7, 2006)
the Commission’s Public Reference
(SR–NSX–2006–08); Securities Exchange Act
Room. Copies of the filing also will be
Release No. 54155 (July 14, 2006), 71 FR 41291
(July 20, 2006) (SR–NASDAQ–2006–01); and
available for inspection and copying at
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Federal Register / Vol. 71, No. 194 / Friday, October 6, 2006 / Notices
discussed more fully below, the
Commission believes that accelerating
approval of these rules is appropriate
because the proposed rule changes do
not raise any new or novel issues and
that such action is necessary for the
maintenance of fair and orderly markets
and the protection of investors, in that
it will help ensure timely compliance
with Regulation NMS.
cprice-sewell on PROD1PC66 with NOTICES
A. Order Types, Routing and Execution
NYSE Arca has proposed to revise its
rules governing order types and
modifiers, order routing and order
execution 77 to comply with the
requirements of Regulation NMS, and
specifically, to prevent trade-throughs
in accordance with the Rule 611 of
Regulation NMS 78 and to avoid locked
and crossed markets. In addition, NYSE
Arca’s rules are assume that its
disseminated quotations will constitute
automated quotations under Rule
600(b)(3) of Regulation NMS.79
NYSE Arca has proposed to
implement routing options that it
believes are consistent with Rules 610
and 611 of Regulation NMS.80
Specifically, the Commission notes that
NYSE Arca represents that its systems
will prevent the execution of all or part
of an inbound order if the execution of
all or part of the order would violate
Rule 611 of Regulation NMS.81 The
Commission notes that the proposed
NYSE Arca rules would provide
exceptions to the general prohibition on
trade-throughs consistent with Rule
611(b) of Regulation NMS. For example,
these proposed amendments would
include permitting users to designate
orders meeting the requirement of Rule
600(b)(30) of Regulation NMS 82 as
intermarket sweep orders and accepting
intermarket sweep orders, which would
allow orders so designated to be
automatically matched and executed
without reference to protected
quotations at other trading centers.83 In
Securities Exchange Act Release No. 54528
(September 28, 2006) (SR–ISE–2006–48).
77 See proposed changes to NYSE Arca Rules 7.31
and 7.37.
78 17 CFR 242.611.
79 17 CFR 242.600(b)(3). See note 56, infra, and
accompanying text.
80 See proposed changes to NYSE Arca Rules
7.31, 7.35 and 7.37. For NYSE Arca’s proposed
exceptions see proposed NYSE Arca Rules 7.35(f),
7.37(e)(3), 7.37(f)(1), 7.37(g) and 7.37(h).
81 See Section II.A.1.b., infra. The Commission
notes that, in general, proposed NYSE Arca Rule
7.37 will require that, for an execution to occur on
NYSE Arca the price must be equal to or better than
(1) the PBBO, in the case of a Limit Order or a Q
Order or (2) the NBBO, in the case of an Inside
Limit Order, a Pegged Order, or a Market Order.
82 17 CFR 242.600(b)(30).
83 See proposed NYSE Arca Rule 7.37(g). See also
proposed NYSE Arca Rules 7.37(b)(2)(B)(iii) and
7.31(gg).
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addition, the Commission notes that the
proposed NYSE Arca rules would
permit use of the ‘‘self help’’ exception
under Rule 611(b)(1) of Regulation
NMS 84 when another trading center is
experiencing a failure, material delay, or
malfunction of its systems or
equipment.85 The proposed rules
include policies and procedures for
communicating to other trading centers
about such a situation.86 The
Commission notes that these proposed
exceptions to Rule 611 of Regulation
NMS comply with the requirements of
Regulation NMS.87 The Commission
further notes that, pursuant to the
proposed changes to NYSE Arca Rule
7.40, any executions in the NYSE Arca
Marketplace that occur through a
protected quotation shall be marked
with the appropriate designation as
defined by the transaction reporting
plans.88 Finally, the Commission notes
the proposed rules are designed to
prohibit locked and crossed markets.89
The Commission finds that these
proposed changes are consistent with
the Act. The Commission also finds
good cause to accelerate approval of
these changes prior to the thirtieth day
after publication in the Federal
Register. The Commission believes that
the proposed amendments to NYSE
Arca’s rules governing order types,
routing and execution are designed to
comply with Regulation NMS and are
substantially similar to rules of other
exchanges that were designed to comply
with Regulation NMS and that have
been published for comment and
approved by the Commission.90 The
Commission believes, therefore, that the
proposed rule changes do not raise new
regulatory issues.
B. Definitions and Technical Changes
NYSE Arca proposes to amend certain
of its defined terms to make them
consistent with Regulation NMS and to
add other defined terms consistent with
Regulation NMS.91 In particular, the
Commission notes that NYSE Arca
proposes to adopt definitions for NMS
Stock, Protected Bid, Protected Offer,
Protected Quotation, Trade-Through,
Trading Center, Effective National
84 17
CFR 242.611(b).
proposed NYSE Arca Rule 7.37(f) and
Section II.A.1.i.(Self Help), infra.
86 See proposed NYSE Arca Rule 7.37(f)(1)(A)–
(B). See also Section II.A.1.b.1., infra, for a
discussion of the policies and procedures that
NYSE Arca will utilize.
87 See 17 CFR 242.611. See also Securities
Exchange Act Release No. 54389 (August 31, 2006),
71 FR 52829 (September 7, 2006).
88 See proposed NYSE Arca Rule 7.40.
89 See proposed NYSE Arca Rule 7.37(e).
90 See note 76, infra, and accompanying text.
91 See proposed changes to NYSE Arca Rule 1.1.
85 See
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Sfmt 4703
59183
Market System Plan and Regular
Trading Hours that are intended to be
consistent with Regulation NMS and
necessary for NYSE Arca’s other
proposed rule changes that are designed
to enable the Exchange to comply with
Regulation NMS.92 Further, NYSE Arca
proposes to make other technical, nonsubstantive changes, such as
renumbering its rule sections, that are
consistent with the other changes
proposed in this filing. The Commission
finds good cause to accelerate approval
of these changes prior to the thirtieth
day after publication in the Federal
Register. The Commission believes that
these rules are appropriate and
consistent with the Act, and that
accelerating approval of these rules is
appropriate because they do not raise
any new regulatory issues.
C. Compliance Dates and Effectiveness
of Proposed Rules
The Exchange represents that the
purpose of this proposed rule change is
to bring its rules into conformity with
Regulation NMS.93 The Commission
notes that February 5, 2007 is the
Trading Phase Date and the final date
for full operation of Regulation NMScompliance trading systems of all
automated trading centers, including
SRO trading facilities that intend to
qualify their quotations for tradethrough protection under Rule 611 of
Regulation NMS during the Pilot Stock
Phase and All Stock Phase.94 The
Commission also notes that the
Exchange proposes to implement these
proposed rules on the Trading Phase
Date.95 The Commission further finds
good cause to accelerate approval of
these proposed rule changes prior to the
thirtieth day after publication in the
Federal Register, because the
Commission believes that doing so
should help to ensure that the
appropriate NYSE Arca rules are in
place at the time that Regulation NMS
compliance is required.
For the foregoing reasons, the
Commission finds that the proposed
rule change, as amended, is consistent
with the requirements of the Act the
rules and regulations thereunder, and
finds that good cause exists to accelerate
approval of the proposed rule change,
pursuant to Section 19(b)(2) of the
Act.96
92 See
note 9, infra.
Sections I and II.A.1., infra.
94 Securities Exchange Act Release No. 58329
(May 18, 2006), 71 FR 30038 (May 24, 2006). See
supra note 8.
95 See Section I, infra.
96 15 U.S.C. 78s(b)(1).
93 See
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59184
Federal Register / Vol. 71, No. 194 / Friday, October 6, 2006 / Notices
VI. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,97 that the
proposed rule change (File No. SR–
NYSEArca–2006–59), as amended by
Amendment No. 1, be, and hereby is,
approved on an accelerated basis.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.98
Nancy M. Morris,
Secretary.
[FR Doc. E6–16582 Filed 10–5–06; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54538; File No. SR–Phlx–
2006–43]
Self-Regulatory Organizations;
Philadelphia Stock Exchange, Inc.;
Order Approving a Proposed Rule
Change and Amendment Nos. 1 and 2
Thereto and Notice of Filing and Order
Granting Accelerated Approval to
Amendment No. 3 Thereto Relating to
the Exchange’s New Equity Trading
System, XLE
September 28, 2006.
I. Introduction
On July 13, 2006, the Philadelphia
Stock Exchange, Inc. (‘‘Phlx’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’), pursuant to section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 a proposed rule change to
amend its rules to implement a new
trading model for equity securities that
provides the opportunity for automated
executions to occur within a central
matching system accessible by Exchange
members and member organizations and
their Sponsored Participants, as defined
below. On August 14, 2006, the
Exchange filed Amendment No. 1 to the
proposed rule change. On August 16,
2006, the Exchange filed Amendment
No. 2 to the proposed rule change. The
proposed rule change, as amended, was
published for comment in the Federal
Register on August 25, 2006.3 The
Commission received two comment
letters on the proposal, as amended.4 On
cprice-sewell on PROD1PC66 with NOTICES
97 Id.
98 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release No. 54329
(August 17, 2006), 71 FR 50482 (August 25, 2006)
(‘‘Notice’’).
4 See Letter from Joseph D. Carapico, PennMont
Securities to C. Robert Paul, Chief Counsel, Phlx,
1 15
VerDate Aug<31>2005
14:52 Oct 05, 2006
Jkt 211001
September 22, 2006, the Exchange filed
Amendment No. 3 to the proposed rule
change.5
This order approves the proposed rule
change as amended by Amendment Nos.
1 and 2. Simultaneously, the
Commission is providing notice of filing
of Amendment No. 3 and is granting
accelerated approval of Amendment No.
3.
II. Description
The Exchange proposes to amend its
rules to implement a new market
structure and trading model for equity
securities. Specifically, the Exchange
proposes to adopt a fully-automated
equities trading system, referred to as
‘‘XLE,’’ through which automated
executions will occur within a central
matching system. With the introduction
of this new automated, order-driven
system, the Exchange no longer will
continue to operate a physical equities
trading floor, nor will it operate its
automated Philadelphia Stock Exchange
Automated Communication and
Execution (‘‘PACE’’) System through
which Phlx member organizations
currently can send orders to the
Exchange electronically.6
dated September 5, 2006; and Letter from Joseph D.
Carapico, PennMont Securities to C. Robert Paul,
Chief Counsel, Phlx, dated September 13, 2006
(‘‘Second PennMont Letter’’). See also Letter from
C. Robert Paul, Executive Vice President and
General Counsel, Phlx, to Nancy M. Morris,
Secretary, Commission, dated September 20, 2006
(responding to the two comment letters) (‘‘Phlx
Response Letter’’).
5 The text of Amendment No. 3 is available on
Phlx’s Web site (https://www.phlx.com), at the
principal office of Phlx, and at the Commission’s
Public Reference Room. In Amendment No. 3, the
Exchange made several technical, non-substantive
changes to the proposed rule text. In addition, the
Exchange added text to proposed Phlx Rule 188
regarding trade identifiers; relocated the self-help
provision from proposed Phlx Rule 1(cc) to
proposed Phlx Rule 185(h); added text to proposed
Phlx Rule 185(b)(3) to clarify the operation of
Pegged Orders; and amended the terminology in
proposed Phlx Rule 163 from ‘‘Exchange Official’’
to ‘‘Equity Exchange Official.’’ Further, the
Exchange proposes to allow floor members and
member organizations who become XLE
participants to remain in their current space on the
Exchange’s floor, paying the applicable space rental
fees, for a short time while they transition to XLE.
The Exchange also announced its intent to request
relief from the applicable provisions of the ITS Plan
to allow the Exchange to implement ISO Orders and
IOC Cross Orders marked ISO, as well as orders
marked ‘‘Benchmark,’’ before the February 5, 2007
‘‘Trading Phase Date’’ for Regulation NMS (i.e., the
operative date for Regulation NMS-compliant
systems that intend to qualify their quotations for
trade-through protection under Rule 611 of
Regulation NMS during the Pilot Stocks Phase and
All Stocks Phase).
6 Since the Exchange proposes to operate XLE in
lieu of trading on its physical equities trading floor,
in addition to proposing new and amended rules to
implement XLE, the Exchange also proposes to
modify or delete several Phlx By-laws and various
Phlx Rules that relate to floor trading. The Exchange
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XLE will accept orders in NMS
Stocks 7 that are traded on the Exchange
(which, as proposed, will include
Nasdaq-listed securities) 8 from
Exchange members and member
organizations, and their Sponsored
Participants and their Participant
Authorized Users (collectively, ‘‘XLE
Participants’’) and will display, route,
and execute those orders automatically
pursuant to non-discretionary
algorithms codified in the proposed
Phlx Rules. Orders will be ranked on
XLE in price-time priority regardless of
the identity of the entering XLE
Participant, and executions will occur
automatically and immediately upon
order entry if trading interest is
available on the system. The Exchange
also will provide an optional routing
service for those orders eligible for
routing for which trading interest is not
present on XLE.9
With its new equities trading
platform, the Exchange no longer will
accommodate equity specialists.
However, the Exchange proposes to
allow its member organizations to
register as Market Makers 10 on XLE, and
those Market Makers could then choose
to register in one or more securities that
are traded on XLE. Since Market Maker
registration will be optional, an NMS
Stock may trade on XLE without a
Market Maker. Once registered in a
particular security, a Market Maker will
be required to maintain continuous
Limit Orders on both sides of the market
in that security during the Core Session
also proposes to delete various outdated Phlx Rules
that relate, for example, to the delivery and
settlement of securities. The Commission notes that
upon approval, unless otherwise specified, the
proposed rule changes will be effective, but not
operative, until the Exchange discontinues its
physical equities trading floor and commences
operation of XLE, as described in Section II.
7 See proposed Phlx Rule 1(t). See also 17 CFR
242.600(b)(47). The term ‘‘NMS Stock’’ means any
NMS security other than an option. ‘‘NMS security’’
is defined in Rule 600(b)(46) of Regulation NMS
under the Act to mean any security or class of
securities for which transaction reports are
collected, processed, and made available pursuant
to an effective transaction reporting plan. See 17
CFR 242.600(b)(46).
8 Unlike its current equities floor, where Phlx
does not trade Nasdaq-listed securities, the
Exchange proposes to allow XLE to trade Nasdaqlisted securities, in addition to securities listed on
other national securities exchanges, pursuant to
unlisted trading privileges.
9 The Routing Agreement will allow the routing
broker-dealer to act for the XLE Participant if the
XLE Participant or its Sponsored Participant enters
an order-type that is routable. As proposed, no XLE
Participant will be able to enter a Limit Order or
Reserve Order without ‘‘Do Not Route’’ instructions,
or a Single Sweep Order, unless the XLE Participant
or the XLE Participant’s Sponsoring Member
Organization has entered into a Routing Agreement.
See proposed Phlx Rule 181.
10 See proposed Phlx Rule 1(l).
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]]>Agencies
[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Notices]
[Pages 59179-59184]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16582]
[[Page 59179]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-54549; File No. SR-NYSEArca-2006-59]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Order Granting Accelerated Approval to a Proposed Rule Change and
Amendment No. 1 Thereto Relating To Adoption of Regulation NMS
September 29, 2006.
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 September 14, 2006, NYSE Arca, Inc., through its wholly owned
subsidiary NYSE Arca Equities, Inc. (``NYSE Arca'' or the
``Exchange''), filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \3\ and Rule 19b-4 thereunder,\4\ a
proposed rule change to amend its rules to conform them to the
requirements of Regulation NMS under the Act (``Regulation NMS'').\5\
On September 29, 2006, the Exchange filed Amendment No. 1 to the
proposed rule change.\6\ The proposed rule change, as amended, is
described in Items I and II below, which Items have been prepared by
the Exchange. The Commission is publishing this notice to solicit
comments on the proposed rule change, as amended, from interested
persons and is approving the proposal on an accelerated basis.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(1).
\4\ 17 CFR 240.19b-4.
\5\ 17 CFR 242.600 et seq.
\6\ See Form 19b-4 dated September 28, 2006 (``Amendment No.
1''). Amendment No. 1 replaces and supersedes the original filing in
its entirety.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
NYSE Arca proposes to amend its rules to conform them to the
requirements of the Commission's Regulation NMS,\7\ including Rule 611
of Regulation NMS and Rule 610 of Regulation NMS. In addition, the
Exchange proposes the adoption of other Regulation NMS order types, to
utilize Regulation NMS terms, for example, ``Protected Bid,''
``Protected Offer'' and ``Protected Quotation,'' and to add an
additional term, ``Protected Best Bid and Offer'' (``PBBO''), which
mirrors the concept of the NBBO for Protected Quotes. Finally, the
Exchange proposes that this rule filing shall become effective on
February 5, 2007, the Trading Phase Date under Regulation NMS.\8\ The
text of the proposed rule change is available at the Commission's
Public Reference Room, at the Exchange, and on the Exchange's Web site
at https://www.nysearca.com.
---------------------------------------------------------------------------
\7\ 17 CFR 242.600, et seq.
\8\ The date the Commission has set for automated trading
centers to be in compliance with Rule 611 of Regulation NMS is
February 5, 2007 (``Trading Phase Date''). See Securities Exchange
Act Release No. 53829 (May 18, 2006), 71 FR 30038 (May 24, 2006).
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, NYSE Arca included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change, as
amended. The text of these statements may be examined at the places
specified in Item III below. NYSE Arca 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
NYSE Arca is submitting this rule change to bring its rules into
conformity with Regulation NMS.\9\ NYSE Arca proposes revisions to and
the adoption of certain definitions to conform its rules to Regulation
NMS. In addition, Rule 611 of Regulation NMS requires the Exchange to
adopt certain order types that the Exchange proposes to begin utilizing
upon the Trading Phase Date.
---------------------------------------------------------------------------
\9\ On June 9, 2005, the Commission issued its Regulation NMS
Release. See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37495 (June 29, 2005). Regulation NMS adopted, among
other things, the Order Protection Rule, requiring trading centers
to establish, maintain and enforce written policies and procedures
reasonably designed to prevent the execution of trades at prices
inferior to protected quotations displayed by automated trading
centers, subject to applicable exceptions. Regulation NMS also
adopted an Access Rule, which: requires fair and non-discriminatory
access to quotations; establishes a limit on access fees to
harmonize the pricing of quotations across different trading
centers; and requires NYSE Arca to adopt, maintain and enforce
written rules that prohibit its members from engaging in a pattern
or practice of displaying any quotations that lock or cross
protected quotations disseminated pursuant to an effective National
Market System Plan (``NMS Plan'').
---------------------------------------------------------------------------
a. Trading Features of NYSE Arca and Rule 611 of Regulation NMS
NYSE Arca proposes to adopt certain trading features to conform to
Regulation NMS requirements, including:
i. Quotations and Other Regulation NMS Definitions
The Exchange proposes to adopt certain Regulation NMS definitions
for quotations such as ``Protected Bid,'' ``Protected Offer,'' ``Best
Protected Bid,'' ``Best Protected Offer,'' and ``Protected Quotation.''
\10\ The Exchange also proposes to add the definition of ``Protected
Best Bid and Offer'' (``PBBO'') \11\ to distinguish Protected NBBO
quotes in order to satisfy Rule 611 of Regulation NMS. The terms
``Protected Bid,'' \12\ ``Protected Offer'' \13\ and ``Protected
Quotation'' \14\ refer to automated quotations in NMS securities \15\
that are displayed by ``Trading Centers,'' disseminated pursuant to an
effective national market system plan, and which are the best bid,
offer or both bid and offer, respectively, of a national securities
exchange or a national securities association.\16\ The terms ``Best
Protected Bid,'' ``Best Protected Offer'' will replace the references
to the national best bid and national best offer for all automated
quotations, and ``Protected Best Bid and Offer'' (``PBBO'') \17\ will
replace the references to the NBBO for all automated quotations.
---------------------------------------------------------------------------
\10\ See proposed NYSE Arca Rule 1.1(dd).
\11\ See proposed NYSE Arca Rule 1.1(eee).
\12\ 17 CFR 242.600(b)(57).
\13\ 17 CFR 242.600(b)(57).
\14\ 17 CFR 242.600(b)(58).
\15\ As defined in Rule 600(b)(3) of Regulation NMS. 17 CFR
242.600(b)(3).
\16\ See proposed NYSE Arca Rule 1.1(eee).
\17\ See proposed NYSE Arca Rule 1.1(dd).
---------------------------------------------------------------------------
The Exchange will also utilize the terms ``Automated Trading
Center,'' \18\ ``Automated Quotation,'' \19\ and ``Manual Quotation''
\20\ as defined by Regulation NMS.\21\ A ``Trading Center'' includes
not only Exchange and SRO trading facilities, but also Automated
Trading Systems, exchange and OTC Market Makers and any other broker/
dealer that internalizes or crosses orders.\22\
---------------------------------------------------------------------------
\18\ 17 CFR 242.600(b)(4).
\19\ 17 CFR 242.600(b)(3).
\20\ 17 CFR 242.600(b)(37).
\21\ See proposed NYSE Arca Rule 1(eee).
\22\ See proposed NYSE Arca Rule 1.1(ggg).
---------------------------------------------------------------------------
The Exchange also proposes other Regulation NMS terms including
``Effective National Market System Plan,'' and ``Regular Trading
Hours,'' \23\ both of which terms shall have the meanings set forth in
Rule 600(b) of Regulation NMS, and ``Trade-Through,'' \24\ which shall
mean the
[[Page 59180]]
purchase or sale of an NMS stock during regular trading hours, either
as principal or agent, at a price that is lower than a Protected Bid or
higher than a Protected Offer.
---------------------------------------------------------------------------
\23\ See proposed NYSE Arca Rule 1.1(hhh).
\24\ See proposed NYSE Arca Rule 1.1(fff).
---------------------------------------------------------------------------
ii. Order Routing
Consistent with the adoption of the Order Protection Rule, NYSE
Arca proposes to clarify how certain of its existing order types will
function in the Regulation NMS environment, including the Limit, Inside
Limit, Market, Cross, and Q Orders, as explained further below. The
Exchange also proposes additional clarity on how Auction functions will
work within the Regulation NMS environment. For Inside Limit, Pegged
and Market orders, the rules will continue to provide that they shall
not be executed outside of the NBBO.\25\
---------------------------------------------------------------------------
\25\ See NYSE Arca Rules 7.31(a), (d) and (cc).
---------------------------------------------------------------------------
Limit Orders
Limit Orders, Reserve Limit Orders, and Discretion Limit Orders,
will be routed to Protected Quotations, but not to Manual Quotations.
These limit orders may lock, cross, and trade-through a Manual
Quotation without a requirement to route away.\26\
---------------------------------------------------------------------------
\26\ See proposed NYSE Arca Rule 7.31(b)(1); proposed NYSE Arca
Rule 7.31(h)(3)(C); and proposed NYSE Arca Rule 7.31(h)(2)(B).
---------------------------------------------------------------------------
Post No Preference (``PNP'') Orders and PNP Directed Orders will
never route away and will be posted in the NYSE Arca book if partially
executed on the Exchange. PNP Orders may lock, cross or trade-through a
Manual Quotation without a requirement to route.\27\
---------------------------------------------------------------------------
\27\ See proposed NYSE Arca Rule 7.31(w).
---------------------------------------------------------------------------
Immediate or Cancel (``IOC'') Orders will never route away. IOC
Orders will be permitted to trade-through a Manual Quotation.\28\
---------------------------------------------------------------------------
\28\ See proposed NYSE Arca Rule 7.31(e)(3).
---------------------------------------------------------------------------
NOW Orders if routed away will be routed to Protected
Quotations.\29\ When eligible, Pegged Limit Orders will be routed to
Protected Quotations and Manual Quotations representing (and pegged off
of) the NBBO.\30\
---------------------------------------------------------------------------
\29\ See proposed NYSE Arca Rule 7.31(v).
\30\ See proposed NYSE Arca Rule 7.37.
---------------------------------------------------------------------------
Intermarket Sweep Orders with an Immediate-or-Cancel designation
(``ISO IOC'') and ISO Post no Preference (``ISO PNP'') Limit Orders
will never be routed to either an Automated or Manual Quotation and may
lock, cross and trade-through both Manual Quotations and Protected
Quotations without routing if the User has complied with proposed NYSE
Arca Rule 7.37(e)(3)(C).\31\ These orders will require specific tape
indicators if executed under the exemptions provided in Rule 611(b) of
Regulation NMS.
---------------------------------------------------------------------------
\31\ See proposed NYSE Arca Rule 7.37(g)(2) and Proposed NYSE
Arca Rule 7.31(w).
---------------------------------------------------------------------------
Inside Limit Orders
Inside Limit and Pegged Orders will be routed to Protected
Quotations representing the NBBO.\32\ PNP Inside Limit and IOC Inside
Limit Orders will never be routed to either Automated or Manual
Quotations. PNP Inside Limit Orders, however, cannot lock or cross
Manual Quotations.\33\ NOW Inside Limit Orders will be routed to
Protected Quotations.\34\
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\32\ See proposed NYSE Arca Rule 7.37(d)(2)(A).
\33\ See proposed NYSE Arca Rule 7.31(w).
\34\ See proposed NYSE Arca Rule 7.31(v).
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Market Orders
When eligible, Market Orders will be routed to both Automated and
Manual Quotations.\35\
---------------------------------------------------------------------------
\35\ See proposed NYSE Arca Rule 7.37(d)(2)(A).
---------------------------------------------------------------------------
Cross Orders
Cross Orders, including Cross and Post Orders, will be routed to a
Protected Quotation if needed,\36\ but each will be identified as an
ISO IOC sent to the Protected Quotation market.\37\ A Cross Order may
trade-through a Manual Quotation without routing.\38\ A Cross and Post
Order may lock and cross Manual Quotations, and may trade-through
Manual Quotations.\39\ Unless marked ISO, however, the Cross Order and
the Cross and Post Orders may not trade-through Protected
Quotations.\40\ PNP and IOC Crosses may trade-through Manual
Quotations.\41\
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\36\ See proposed NYSE Arca Rule 7.31(s)(2).
\37\ See proposed NYSE Arca Rule 7.31(s)(6).
\38\ See proposed NYSE Arca Rule 7.31(s).
\39\ See proposed NYSE Arca Rule 7.31(s)(3).
\40\ See proposed NYSE Arca Rule 7.31(s)(3) and (4).
\41\ See proposed NYSE Arca Rule 7.31(s)(4).
---------------------------------------------------------------------------
Q Orders
All Q Orders will never be routed, but each may lock, cross and
trade-through Manual Quotations.\42\
---------------------------------------------------------------------------
\42\ See proposed NYSE Arca Rule 7.31(k).
---------------------------------------------------------------------------
iii. New Limit Order Types
The Exchange proposes to add new order types that will be
consistent with Regulation NMS. The new order types are ``Intermarket
Sweep Orders'' or (``ISO''),\43\ which is a limit order for an NMS
stock that meets the requirements of Rule 600(b)(30) of Regulation
NMS,\44\ an ``ISO IOC Order,'' which contains the attributes of the ISO
order, but which will provide that any remaining balance in the order
not executed would be automatically cancelled,\45\ an ``ISO Order
designated as PNP,'' which will provide for limit orders that are to be
executed in whole or in part at the Exchange, but which may lock and
cross and trade-through Manual and Protected Quotations but only if the
User has complied with proposed NYSE Arca Rule 7.37(e)(3)(C),\46\ ``ISO
IOC Cross'' orders, which may trade-through Protected Quotations,\47\
and ``ISO PNP Cross and Post'' orders, which may trade-through
Protected Quotations, and may lock and cross any quotes, but only if
the User has complied with proposed NYSE Arca Rule 7.37(e)(3)(C).''
\48\
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\43\ See proposed NYSE Arca Rule 7.31(jj).
\44\ 17 CFR 242.600(b)(3).
\45\ See proposed NYSE Arca Rule 7.37(g)(2).
\46\ See proposed NYSE Arca Rule 7.31(w).
\47\ See proposed NYSE Arca Rule 7.31(s)(5)(A).
\48\ See proposed NYSE Arca Rule 7.31(s)(5)(B).
---------------------------------------------------------------------------
iv. Auctions
NYSE Arca Rule 7.35 provides for certain Auction sessions,
including the Opening, Market Order, Halt and Closing Auctions. For
purposes of Regulation NMS, the Exchange will not route orders
designated for these Auctions to any away markets. In addition, orders
designated for these Auctions may trade-through any away market
pursuant to the exemptions in Rule 611 of Regulation NMS,\49\ if the
transaction that constituted the trade-through was a single-priced
opening, reopening, or closing transaction by the trading center. Any
trade-through execution will be designated with the appropriate trade
modifier as defined by the transaction reporting plans.
---------------------------------------------------------------------------
\49\ See proposed NYSE Arca Rule 7.35(h).
---------------------------------------------------------------------------
b. Exceptions to Locking/Crossing and Trade-Throughs
The Exchange proposes specific trade-through restrictions,
including how orders are handled at NYSE Arca or transmitted to another
Trading Center based upon the Order Protection Rule. The Exchange's
systems will prevent the execution of all or a part of an inbound order
if the execution of all or a part of the order would violate the Rule
611 of Regulation NMS. NYSE Arca proposes the following exceptions:
(1) The ``Locking Quotation'' or ``Crossing Quotation'' \50\ was
displayed at a time when the Trading Center displaying the locked or
crossed quotation was experiencing a failure, material delay, or
malfunction of its systems or equipment.\51\ This is known as the
``self-help exception,'' discussed further below. The term ``Crossing
[[Page 59181]]
Quotation'' \52\ will be defined as the display of a bid for an NMS
stock during regular trading hours at a price that is higher than the
displayed offer for such NMS stock previously disseminated pursuant to
an effective national market system plan, or the display of an offer
for an NMS stock during regular trading hours at a price that is lower
than the displayed price of a bid for such NMS stock previously
disseminated pursuant to an effective national market system plan. The
term ``Locking Quotation'' \53\ will be defined as the display of a bid
for an NMS stock during regular trading hours at a price that equals
the displayed price of an offer for such NMS stock previously
disseminated pursuant to an effective national market system plan, or
the display of an offer for an NMS stock during regular trading hours
at a price that equals the displayed price of a bid for such NMS stock
previously disseminated pursuant to an effective national market system
plan.
---------------------------------------------------------------------------
\50\ See proposed NYSE Arca Rule 7.37(e).
\51\ See proposed NYSE Arca Rule 7.37(e)(3)(A).
\52\ See proposed NYSE Arca Rule 7.37(e)(1)(A).
\53\ See proposed NYSE Arca Rule 7.37(e)(1)(B).
---------------------------------------------------------------------------
(2) The Crossing Quotation was displayed at a time when a Protected
Bid was higher than a Protected Offer in the NMS stock.\54\
---------------------------------------------------------------------------
\54\ See proposed NYSE Arca Rule 7.37(e)(3)(B).
---------------------------------------------------------------------------
(3) The Locking or Crossing Quotation was an Automated Quotation,
and the User of the Exchange displaying such Automated Quotation
simultaneously routed an ISO to execute against the full displayed size
of any locked or crossed Protected Quotation.\55\
---------------------------------------------------------------------------
\55\ See proposed NYSE Arca Rule 7.37(e)(3)(C).
---------------------------------------------------------------------------
NYSE Arca believes that its disseminated quotations would
constitute Automated Quotations under the definition set out in Rule
600(b)(3) of Regulation NMS,\56\ and for that reason has not submitted
rules regarding Manual Quotations of its participants.
---------------------------------------------------------------------------
\56\ The definition of automated trading center in Rule
600(b)(4) of Regulation NMS, 17 CFR 242.600(b)(4), requires, among
other things, that a trading center (1) implement such systems,
procedures and rules as are necessary to render it capable of
meeting the requirements for automated quotations, as defined in
Rule 600(b)(3) of Regulation NMS, 17 CFR 242.600(b)(3); and (2)
immediately identify its quotations as manual whenever it has reason
to believe it is not capable of displaying automated quotations. The
definition of automated quotation requires, among other things, that
a trading center provide an immediate response to incoming IOC
orders and immediately update its quotations. NYSE Arca is designed
to accept IOC orders, to immediately and automatically execute an
IOC order against the displayed BBO up to its full size; to
immediately and automatically cancel any unexecuted portion of the
IOC order without routing the order elsewhere; to immediately and
automatically transmit a response to the order-sending participant
indicating the action taken on the order; and to immediately and
automatically update the BBO to reflect any change that occurred as
a result of the execution.
---------------------------------------------------------------------------
i. Additional Exceptions
Self Help
The Exchange proposes to utilize the ``self-help'' exception to any
trade-through of a Protected Quotation displayed by a Trading Center
that is experiencing a failure, material delay, or malfunction of its
systems or equipment.\57\ The Exchange will be able to ignore another
Trading Center's bid and offer if the other Trading Center has
repeatedly failed to respond within one second to an incoming IOC order
after adjusting for order transmission time. In these instances,
Protected Quotations may be bypassed by: (a) notifying the non-
responding Trading Center immediately after (or at the same time as)
electing self-help; \58\ (b) assessing whether the cause of the problem
lies with the Exchange's own systems and, if so, taking immediate steps
to resolve the problem; and (c) developing objective parameters for
monitoring and utilizing this exception.
---------------------------------------------------------------------------
\57\ See proposed NYSE Arca Rule 7.37(f)(1).
\58\ See proposed NYSE Arca Rule 7.37(f)(1)(A).
---------------------------------------------------------------------------
For purposes of utilizing self-help when effecting a trade-through
of a Protected Quotation displayed by a Trading Center, NYSE Arca
proposes to use mechanisms such as e-mail or other mechanisms that may
be determined between Trading Centers. Generally, the NYSE Arca Systems
procedures will allow for the disregard of Protected Quotations of a
market against which the Exchange has elected self-help, and all trades
executed under this exception will be marked with the appropriate
identifier specified by the relevant NMS Plan.
Should NYSE Arca determine that the problem lies within its own
system or with its connection to the other Trading Center, NYSE Arca
shall no longer rely on the self-help exception and shall notify the
other Trading Center that the Exchange is no longer claiming the
exception.\59\
---------------------------------------------------------------------------
\59\ See proposed NYSE Arca Rule 7.37(f)(1)(B).
---------------------------------------------------------------------------
Intermarket Sweep Order Exception
The Exchange proposes to add new a new rule to provide that ISOs
may, by their definition, trade-through Protected Quotations when the
Exchange has simultaneously routed an ISO to execute against the full
displayed size of that Protected Quotation.\60\ NYSE Arca will accept
ISO orders to be executed against orders at the Exchange's Protected
Quotation without regard to whether the execution will trade-through
another market's Protected Quotation under the assumption that the ISO
being routed has already satisfied the Protected Quotations of other
Trading Centers. The NYSE Arca System may also lock or cross an away
Protected Quotation if the System has first routed an order to that
quotation and all better priced quotations for their full displayed
size.
---------------------------------------------------------------------------
\60\ See proposed NYSE Arca Rule 7.37(g)(1).
---------------------------------------------------------------------------
The Exchange proposes to add a new rule to provide that if an ISO
is marked as ``immediate or cancel,'' any remaining balance in the
order will be automatically cancelled.\61\ If an ISO is not marked as
``immediate or cancel,'' any remaining balance in the order would be
displayed by the Exchange without regard to whether that display would
lock or cross another market center, only if the participant routing
the order has already sent an order to satisfy the quotations of other
markets so that the display of the order would not lock or cross those
markets.
---------------------------------------------------------------------------
\61\ See proposed NYSE Arca Rule 7.37(g)(2).
---------------------------------------------------------------------------
Single-Price Openings, Reopenings, and Closing Transactions
The Exchange proposes to add a new rule to provide that a
transaction that constituted the trade-through is excepted from the
Order Protection Rule if it was a single-priced opening, reopening, or
closing transaction by the Exchange.\62\ NYSE Arca will conduct a
formalized and transparent process for executing orders during
reopening after a trading halt that involves the queuing and ultimate
execution of multiple orders at a single equilibrium price.\63\
---------------------------------------------------------------------------
\62\ See proposed NYSE Arca Rule 7.37(g)(3).
\63\ See proposed NYSE Arca Rule 7.35(f).
---------------------------------------------------------------------------
Benchmark Trades
The Exchange proposes to add a new rule to provide for the
execution of volume-weighted average price (``VWAP'') orders, as well
as other types of orders that are not priced with reference to the
quoted price of the NMS stock at the time of execution and for which
the material terms were not reasonably available at the time the
commitment to execute the order was made. Benchmark Trades will not be
allowed to trade-through the NYSE Arca Book.\64\
---------------------------------------------------------------------------
\64\ See proposed NYSE Arca Rule 7.37(g)(4).
---------------------------------------------------------------------------
Stopped Orders
The Exchange proposes to add a new rule to provide that an
exception for stopped orders will apply when the price of the execution
of the stopped order was lower (for a buy order) than the best
Protected Bid at the time of execution, or was higher (for a sell
order) than the best Protected Offer at the time of execution. This
exception is contingent upon the User having agreed
[[Page 59182]]
to the stop price for each order. Stopped Orders will not be allowed to
trade-through the NYSE Arca Book.\65 \
---------------------------------------------------------------------------
\65\ See proposed NYSE Arca Rule 7.37(g)(5).
---------------------------------------------------------------------------
Transactions Other Than ``Regular-Way'' Contracts
The Exchange proposes to add a new rule to provide that
transactions that are executed other than pursuant to standardized
terms and conditions, such as transactions that have extended
settlement terms, also are excepted from the Order Protection Rule.\66\
---------------------------------------------------------------------------
\66\ See proposed NYSE Arca Rule 7.37(g)(6).
---------------------------------------------------------------------------
ii. Exemptions from 611(d) of Regulation NMS
The Commission exempted from the provisions of Rule 611 of
Regulation NMS trade-throughs \67\ caused by the execution of an order
involving one or more NMS stocks that are components of a qualified
contingent trade.\68\ The Exchange therefore proposes to adopt that
same exemption as a part of its Rules.
---------------------------------------------------------------------------
\67\ 17 CFR 242.611(d).
\68\ See Securities Exchange Act Release No. 34-54389 (August
31, 2006).
---------------------------------------------------------------------------
c. Locked/Crossed Markets
In order to satisfy NMS restrictions on locked and crossed markets,
NYSE Arca has proposed additional rules regarding Crossing Quotations
and Locking Quotations. The Exchange addresses intentional locks/
crosses by requiring that all locks/crosses of Protected Quotations be
reasonably avoided, and prohibiting a pattern or practice of displaying
any quotations that lock or cross a Protected Quotation pursuant to an
effective national market system plan. There is no restriction on the
display of automated quotations that lock or cross Manual Quotations.
Inevitably, unintentional locks/crosses will continue to occur even
after adoption of the Rule, often because of rapid updating of
quotations in active stocks.
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) of the
Act,\69\ in general, and furthers the objectives of Section 6(b)(5)
\70\ 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 mechanisms of a free and open
market and a national market system.
---------------------------------------------------------------------------
\69\ 15 U.S.C. 78f(b).
\70\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments on the proposed rule change were neither solicited
nor received.
III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule change, as amended, including
whether the proposed rule change, as amended, is consistent with the
Act. Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2006-59 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2006-59.
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 (https://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 inspection
and copying in the Commission's Public Reference Room. Copies of the
filing also will be available for inspection and copying at the
principal office of NYSE Arca. 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-NYSEArca-2006-59 and should be submitted on or before
October 27, 2006.
IV. Discussion of Commission Findings and Order Granting Accelerated
Approval of Proposed Rule Change
After careful review, the Commission finds that the proposed rule
change, as amended, is consistent with the requirements of the Act and
the rules and regulations thereunder applicable to a national
securities exchange and, in particular, the requirements of Section 6
of the Act \71\ and the rules and regulations thereunder applicable to
a national securities exchange.\72\ The Commission finds that the
proposed rule change, as amended, is consistent with Section 6(b)(5) of
the Act \73\ in that it is designed to prevent fraudulent and
manipulative acts and practices, 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.
---------------------------------------------------------------------------
\71\ 15 U.S.C. 78f.
\72\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
\73\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2) of the Act,\74\ the Commission may not
approve any proposed rule change, or amendment thereto, prior to the
thirtieth day after the date of publication of the notice thereof,
unless the Commission finds good cause for so doing. As set forth
below, the Commission finds good cause for approving the proposed rule
change prior to the thirtieth day after publishing notice thereof in
the Federal Register pursuant to Section 19(b)(2) of the Act.\75\ The
proposed amendments to NYSE Arca's rules are substantially similar to
rules of other exchanges that were designed to comply with Regulation
NMS and have been published for comment and approved by the
Commission.\76\ In this regard, as
[[Page 59183]]
discussed more fully below, the Commission believes that accelerating
approval of these rules is appropriate because the proposed rule
changes do not raise any new or novel issues and that such action is
necessary for the maintenance of fair and orderly markets and the
protection of investors, in that it will help ensure timely compliance
with Regulation NMS.
---------------------------------------------------------------------------
\74\ 15 U.S.C. 78s(b)(2).
\75\ Id.
\76\ See Securities Exchange Act Release No. 54391 (August 31,
2006), 71 FR 52836 (September 7, 2006) (SR-NSX-2006-08); Securities
Exchange Act Release No. 54155 (July 14, 2006), 71 FR 41291 (July
20, 2006) (SR-NASDAQ-2006-01); and Securities Exchange Act Release
No. 54528 (September 28, 2006) (SR-ISE-2006-48).
---------------------------------------------------------------------------
A. Order Types, Routing and Execution
NYSE Arca has proposed to revise its rules governing order types
and modifiers, order routing and order execution \77\ to comply with
the requirements of Regulation NMS, and specifically, to prevent trade-
throughs in accordance with the Rule 611 of Regulation NMS \78\ and to
avoid locked and crossed markets. In addition, NYSE Arca's rules are
assume that its disseminated quotations will constitute automated
quotations under Rule 600(b)(3) of Regulation NMS.\79\
---------------------------------------------------------------------------
\77\ See proposed changes to NYSE Arca Rules 7.31 and 7.37.
\78\ 17 CFR 242.611.
\79\ 17 CFR 242.600(b)(3). See note 56, infra, and accompanying
text.
---------------------------------------------------------------------------
NYSE Arca has proposed to implement routing options that it
believes are consistent with Rules 610 and 611 of Regulation NMS.\80\
Specifically, the Commission notes that NYSE Arca represents that its
systems will prevent the execution of all or part of an inbound order
if the execution of all or part of the order would violate Rule 611 of
Regulation NMS.\81\ The Commission notes that the proposed NYSE Arca
rules would provide exceptions to the general prohibition on trade-
throughs consistent with Rule 611(b) of Regulation NMS. For example,
these proposed amendments would include permitting users to designate
orders meeting the requirement of Rule 600(b)(30) of Regulation NMS
\82\ as intermarket sweep orders and accepting intermarket sweep
orders, which would allow orders so designated to be automatically
matched and executed without reference to protected quotations at other
trading centers.\83\ In addition, the Commission notes that the
proposed NYSE Arca rules would permit use of the ``self help''
exception under Rule 611(b)(1) of Regulation NMS \84\ when another
trading center is experiencing a failure, material delay, or
malfunction of its systems or equipment.\85\ The proposed rules include
policies and procedures for communicating to other trading centers
about such a situation.\86\ The Commission notes that these proposed
exceptions to Rule 611 of Regulation NMS comply with the requirements
of Regulation NMS.\87\ The Commission further notes that, pursuant to
the proposed changes to NYSE Arca Rule 7.40, any executions in the NYSE
Arca Marketplace that occur through a protected quotation shall be
marked with the appropriate designation as defined by the transaction
reporting plans.\88\ Finally, the Commission notes the proposed rules
are designed to prohibit locked and crossed markets.\89\
---------------------------------------------------------------------------
\80\ See proposed changes to NYSE Arca Rules 7.31, 7.35 and
7.37. For NYSE Arca's proposed exceptions see proposed NYSE Arca
Rules 7.35(f), 7.37(e)(3), 7.37(f)(1), 7.37(g) and 7.37(h).
\81\ See Section II.A.1.b., infra. The Commission notes that, in
general, proposed NYSE Arca Rule 7.37 will require that, for an
execution to occur on NYSE Arca the price must be equal to or better
than (1) the PBBO, in the case of a Limit Order or a Q Order or (2)
the NBBO, in the case of an Inside Limit Order, a Pegged Order, or a
Market Order.
\82\ 17 CFR 242.600(b)(30).
\83\ See proposed NYSE Arca Rule 7.37(g). See also proposed NYSE
Arca Rules 7.37(b)(2)(B)(iii) and 7.31(gg).
\84\ 17 CFR 242.611(b).
\85\ See proposed NYSE Arca Rule 7.37(f) and Section
II.A.1.i.(Self Help), infra.
\86\ See proposed NYSE Arca Rule 7.37(f)(1)(A)-(B). See also
Section II.A.1.b.1., infra, for a discussion of the policies and
procedures that NYSE Arca will utilize.
\87\ See 17 CFR 242.611. See also Securities Exchange Act
Release No. 54389 (August 31, 2006), 71 FR 52829 (September 7,
2006).
\88\ See proposed NYSE Arca Rule 7.40.
\89\ See proposed NYSE Arca Rule 7.37(e).
---------------------------------------------------------------------------
The Commission finds that these proposed changes are consistent
with the Act. The Commission also finds good cause to accelerate
approval of these changes prior to the thirtieth day after publication
in the Federal Register. The Commission believes that the proposed
amendments to NYSE Arca's rules governing order types, routing and
execution are designed to comply with Regulation NMS and are
substantially similar to rules of other exchanges that were designed to
comply with Regulation NMS and that have been published for comment and
approved by the Commission.\90\ The Commission believes, therefore,
that the proposed rule changes do not raise new regulatory issues.
---------------------------------------------------------------------------
\90\ See note 76, infra, and accompanying text.
---------------------------------------------------------------------------
B. Definitions and Technical Changes
NYSE Arca proposes to amend certain of its defined terms to make
them consistent with Regulation NMS and to add other defined terms
consistent with Regulation NMS.\91\ In particular, the Commission notes
that NYSE Arca proposes to adopt definitions for NMS Stock, Protected
Bid, Protected Offer, Protected Quotation, Trade-Through, Trading
Center, Effective National Market System Plan and Regular Trading Hours
that are intended to be consistent with Regulation NMS and necessary
for NYSE Arca's other proposed rule changes that are designed to enable
the Exchange to comply with Regulation NMS.\92\ Further, NYSE Arca
proposes to make other technical, non-substantive changes, such as
renumbering its rule sections, that are consistent with the other
changes proposed in this filing. The Commission finds good cause to
accelerate approval of these changes prior to the thirtieth day after
publication in the Federal Register. The Commission believes that these
rules are appropriate and consistent with the Act, and that
accelerating approval of these rules is appropriate because they do not
raise any new regulatory issues.
---------------------------------------------------------------------------
\91\ See proposed changes to NYSE Arca Rule 1.1.
\92\ See note 9, infra.
---------------------------------------------------------------------------
C. Compliance Dates and Effectiveness of Proposed Rules
The Exchange represents that the purpose of this proposed rule
change is to bring its rules into conformity with Regulation NMS.\93\
The Commission notes that February 5, 2007 is the Trading Phase Date
and the final date for full operation of Regulation NMS-compliance
trading systems of all automated trading centers, including SRO trading
facilities that intend to qualify their quotations for trade-through
protection under Rule 611 of Regulation NMS during the Pilot Stock
Phase and All Stock Phase.\94\ The Commission also notes that the
Exchange proposes to implement these proposed rules on the Trading
Phase Date.\95\ The Commission further finds good cause to accelerate
approval of these proposed rule changes prior to the thirtieth day
after publication in the Federal Register, because the Commission
believes that doing so should help to ensure that the appropriate NYSE
Arca rules are in place at the time that Regulation NMS compliance is
required.
---------------------------------------------------------------------------
\93\ See Sections I and II.A.1., infra.
\94\ Securities Exchange Act Release No. 58329 (May 18, 2006),
71 FR 30038 (May 24, 2006). See supra note 8.
\95\ See Section I, infra.
---------------------------------------------------------------------------
For the foregoing reasons, the Commission finds that the proposed
rule change, as amended, is consistent with the requirements of the Act
the rules and regulations thereunder, and finds that good cause exists
to accelerate approval of the proposed rule change, pursuant to Section
19(b)(2) of the Act.\96\
---------------------------------------------------------------------------
\96\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------
[[Page 59184]]
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\97\ that the proposed rule change (File No. SR-NYSEArca-2006-59),
as amended by Amendment No. 1, be, and hereby is, approved on an
accelerated basis.
---------------------------------------------------------------------------
\97\ Id.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\98\
---------------------------------------------------------------------------
\98\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Nancy M. Morris,
Secretary.
[FR Doc. E6-16582 Filed 10-5-06; 8:45 am]
BILLING CODE 8011-01-P
