Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Granting Approval of a Proposed Rule Change To Adopt Rules To Implement the Options Order Protection and Locked/Crossed Market Plan, 43200-43204 [E9-20541]

Download as PDF 43200 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices system, and, in general, to protect investors and the public interest. The Commission also finds that proposed CBOE Temporary Rule 6.83, which facilitates the participation of certain Participating Options Exchanges, including CBOE, who may require the use of P/A Orders and Principal Orders after implementation of the Plan, and would permit CBOE to transmit P/A Orders and Principal Orders, is consistent with the Act. Although the Commission has already approved the Plan,44 the Commission also recognizes that the Exchange and other Plan Participants may require a temporary transition period during which they may want to utilize these order types that exist currently under the Old Plan.45 The Exchange and each of the other Participating Options Exchanges have proposed substantially identical temporary provisions to accommodate this.46 Further, because the Exchange intends also to send P/A Orders and Principal Orders for a temporary period, the Exchange has proposed temporary rules to permit this.47 The Commission finds that the proposed rule relating to the Exchange’s receipt and handling, and transmission of P/A Orders and Principal Orders, and imposing certain obligations on the Exchange with respect to such orders that are similar to those that exist under the Old Plan, is appropriate and consistent with Section 6(b)(5) of the Act 48 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission further finds that CBOE’s proposed rule governing routing of sweep orders is consistent with the Act. As described above, the Exchange would enter into agreements that govern the routing of orders to away markets. Further, the routing of sweep orders would be optional; 49 and the Exchange 44 See Plan Approval, supra, note 5. Commission notes that any Participating Options Exchange that wishes to utilize such order types in a manner that would result in a TradeThrough would need to separately request an exemption from the Plan for such use. See, supra, note 27. 46 The Commission notes that the rules contained in CBOE Temporary Rule 6.83 are not required by the Plan, but rather are rules proposed by the Exchange in order to facilitate the participation in the Plan of certain exchanges, including CBOE, during an initial transition period. 47 See also, supra, note 27. 48 15 U.S.C. 78f(b)(5). 49 Members may choose to avoid routing by using the Immediate or Cancel designation. See Notice. jlentini on DSKJ8SOYB1PROD with NOTICES 45 The VerDate Nov<24>2008 17:05 Aug 25, 2009 Jkt 217001 would be responsible for routing decisions and would retain control of the routing logic. Neither the Exchange, nor any affiliate of the Exchange, may be the designated examining authority for the routing service provider.50 The Commission also notes that the rule contemplates procedures and internal controls designed to protect confidential and proprietary information, which should help ensure that the routing service provider does not misuse routing information obtained from the Exchange. In addition, the Exchange would provide its routing services in compliance with the Act and the rules thereunder, including but not limited to, the requirements in Sections 6(b)(4) and (5) of the Act 51 that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among Exchange members and other persons using the Exchange’s facilities, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers.52 Proposed CBOE Rule 6.53 proposes four new order types: ISO, AIM ISO, Sweep and AIM Order, and CBOE-only Order. The Commission believes that the design of each of these order types should ensure that Protected Bids and Protected Orders are not traded-through in violation of the Plan while also providing market participants with flexibility in executing transactions that meet the specific requirements of the order type. Therefore, the Commission finds that Exchange’s rule permitting these new order types is consistent with Section 6(b)(5) of the Act 53 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange is also proposing to introduce an updated HAL process (i.e., HAL2) and revise its rule governing automatic executions.54 The Commission finds that such changes are appropriate and consistent with the Act and the Plan. Finally, the Commission finds that CBOE’s proposed amendments to certain other CBOE rules to reflect the provisions of the Plan, and to delete provisions of CBOE’s rules rendered 50 See proposed CBOE Rule 6.14B(c). U.S.C. 78f(b)(4) and (5). 52 See proposed CBOE Rule 6.14B(c). 53 15 U.S.C. 78f(b)(5). 54 See notes 28–32, infra, and accompanying text. 51 15 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 unnecessary due to the Plan, are appropriate and consistent with the Act and the Plan. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,55 that the proposed rule change (SR–CBOE–2009– 040), be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.56 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–20542 Filed 8–25–09; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60530; File No. SR–BX– 2009–028] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Granting Approval of a Proposed Rule Change To Adopt Rules To Implement the Options Order Protection and Locked/ Crossed Market Plan August 18, 2009. I. Introduction On June 16, 2009, the NASDAQ OMX BX, Inc. (‘‘BX’’ 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 and adopt rules to implement the Options Order Protection and Locked/Crossed Market Plan. The proposed rule change was published for comment in the Federal Register on June 29, 2009.3 The Commission received no comments on the proposal. This order approves the proposed rule change. II. Description of the Proposal The Exchange proposes to amend and adopt new rules of the Boston Options Exchange Group, LLC (‘‘BOX’’) to implement the Options Order Protection and Locked/Crossed Market Plan (‘‘Plan’’).4 Specifically, the Exchange proposes to replace current 55 15 U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 60158 (June 22, 2009), 74 FR 31081 (‘‘Notice’’). 4 The Plan is a national market system plan proposed by the seven existing options exchanges and approved by the Commission. See Securities Exchange Act Release No. 59647 (March 30, 2009), 74 FR 15010 (April 2, 2009) (File No. 4–546) (‘‘Plan 56 17 E:\FR\FM\26AUN1.SGM 26AUN1 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices Chapter XII of the BOX Rules with new rules implementing the Plan, amend other Exchange rules to reflect the Plan, and delete rules rendered unnecessary by the Plan. jlentini on DSKJ8SOYB1PROD with NOTICES The Old Plan Each of the Participating Options Exchanges are signatories to the Plan for the Purpose of Creating and Operating an Intermarket Option Linkage (‘‘Old Plan’’).5 In pertinent part, the Old Plan generally requires its participants to avoid trading at a price inferior to the national best bid or offer (‘‘tradethrough’’), although it provides for a number of exceptions to trade-through liability.6 The Participating Options Exchanges comply with this requirement of the Old Plan by utilizing a stand alone system (‘‘Linkage Hub’’) to send and receive specific order types,7 namely Principal Acting as Agent Orders (‘‘P/A Orders’’), Principal Orders, and Satisfaction Orders.8 The Old Plan also provided that dissemination of ‘‘locked’’ or ‘‘crossed’’ markets should be avoided, and remedial actions that should be taken to unlock or uncross such market.9 Each of the Participating Options Exchanges, including the Exchange, has submitted an amendment to the Old Plan to withdraw from such Plan.10 The withdrawals will be effective upon approval by the Commission of such Notice’’) and 60405 (July 30, 2009), 74 FR 39362 (August 6, 2009) (File No. 4–546) (‘‘Plan Approval’’). The seven options exchanges are: Chicago Board Options Exchange, Incorporated (‘‘CBOE’’); International Securities Exchange, LLC (‘‘ISE’’); The NASDAQ Stock Market LLC (‘‘Nasdaq’’); NASDAQ OMX PHLX, Inc. (‘‘Phlx’’); NYSE Amex LLC (‘‘NYSE Amex’’); NYSE Arca, Inc. (‘‘NYSE Arca’’); and BOX (each exchange individually a ‘‘Participant’’ and, together, the ‘‘Participating Options Exchanges’’). 5 On July 28, 2000, the Commission approved the Old Plan as a national market system plan for the purpose of creating and operating an intermarket options market linkage proposed by the American Stock Exchange LLC (n/k/a NYSE Amex), CBOE, and ISE. See Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 48023 (August 4, 2000). Subsequently, Philadelphia Stock Exchange, Inc. (n/k/a Phlx), Pacific Exchange, Inc. (n/k/a NYSE Arca), Boston Stock Exchange, Inc. (n/k/a BOX), and Nasdaq joined the Linkage Plan. See Securities Exchange Act Release Nos. 43573 (November 16, 2000), 65 FR 70851 (November 28, 2000); 43574 (November 16, 2000), 65 FR 70850 (November 28, 2000); 49198 (February 5, 2004), 69 FR 7029 (February 12, 2004); and 57545 (March 21, 2008), 73 FR 16394 (March 27, 2008). 6 Section 8(c) of the Old Plan. 7 The Linkage Hub is a centralized data communications network that electronically links the Participating Options Exchanges to one another. The Options Clearing Corporation (‘‘OCC’’) operates the Linkage Hub. 8 Section 2(16) of the Old Plan. 9 Section 7(a)(i)(C) of the Old Plan. 10 See Securities Exchange Act Release No. 60360 (July 21, 2009) 74 FR 37265 (July 28, 2009) (File No. 4–429). VerDate Nov<24>2008 17:05 Aug 25, 2009 Jkt 217001 amendments pursuant to Rule 608 of Regulation NMS under the Act (‘‘Regulation NMS’’).11 The Plan The Plan does not require a central linkage mechanism akin to the Old Plan’s Linkage Hub. Instead, the Plan includes the framework for routing orders via private linkages that exist for NMS stocks under Regulation NMS.12 The Plan requires the Participating Options Exchanges to adopt rules ‘‘reasonably designed to prevent TradeThroughs.’’ 13 Participating Options Exchanges are also required to conduct surveillance of their respective markets on a regular basis to ascertain the effectiveness of the policies and procedures to prevent Trade-Throughs and to take prompt action to remedy deficiencies in such policies and procedures.14 As further described below, the Plan incorporates a number of exceptions to trade-through liability.15 Some of these exceptions are carried over from the Old Plan, including exceptions for trading rotations, non-firm quotes, and complex trades.16 Others are substantially similar to exceptions available for NMS stocks under Regulation NMS, such as exceptions for systems issues, crossed markets, quote flickering, customer stopped orders, benchmark trades and, notably, intermarket sweep orders (‘‘ISOs’’).17 In addition, the Plan contains a new exception for stopped orders and price improvement.18 The Plan also requires each Participant to establish, maintain, and enforce written rules that: Require its members reasonably to avoid displaying 11 17 CFR 242.608. Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) (File No. S7–10–04); 17 CFR 242.600 et seq. For discussions of the similarities between the provisions of Regulation NMS and the provisions in the Plan, see Plan Notice and Plan Approval, supra note 5. 13 Under the Plan, a ‘‘Trade-Through’’ is generally defined as a transaction in an option series, either as principal or agent, at a price that is lower than a Protected Bid or higher than a Protected Offer.’’ See Section 2(21) of the Plan. A ‘‘Protected Bid’’ and ‘‘Protected Offer’’ generally means a bid or offer in an option series, respectively, that is displayed by a Participant, is disseminated pursuant to the Options Price Reporting Authority (‘‘OPRA’’) Plan, and is the Best Bid or Best Offer. See Section 2(17) of the Plan. A ‘‘Best Bid’’ or ‘‘Best Offer’’ means the highest bid price and the lowest offer price. Section (2)(1) of the Plan. ‘‘Protected Bid’’ and ‘‘Protected Offer,’’ together are referred to herein as ‘‘Protected Quotation.’’ See Section 2(18) of the Plan. 14 Section 5(a)(ii) of the Plan. 15 Section 5(b) of the Plan. 16 Subparagraphs (ii), (vii), and (viii), respectively, of Section 5(b) of the Plan. 17 Subparagraphs (i), (iii), (vi), (ix), (xi), and (iv)– (v), respectively, of Section 5(b) of the Plan. 18 Subparagraph (x) of Section 5(b) of the Plan. 12 See PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 43201 locked and crossed markets; assure the reconciliation of locked and crossed markets; and prohibit its members from engaging in a pattern or practice of displaying locked and crossed markets; subject to exceptions as may be contained in the rules of the Participant, as approved by the Commission.19 The Exchange’s Proposal To implement the Plan, the Exchange proposes to replace its current rules relating to the Old Plan with new rules relating to the Plan, and makes amendments to other rules as necessary to conform to the requirements of the Plan.20 As such, the Exchange proposes to adopt all applicable definitions from the Plan into the Exchange’s rules.21 In addition, the Exchange proposes to prohibit its members from effecting Trade-Throughs, unless an exception applies.22 Consistent with the Plan, the Exchange also proposes exceptions to the prohibition on trade throughs relating to: System issues; trading rotations; crossed markets; intermarket sweep orders; quote flickering; non-firm quotes; complex trades; customer stopped orders; stopped orders and price improvement; and benchmark trades.23 The Exchange also proposes a rule to address locked and crossed markets, as required by the Plan.24 Specifically, the Exchange proposes that, except for quotations that fall within a stated exception, members shall reasonably avoid displaying, and shall not engage in a pattern or practice of displaying, any quotations that lock or cross a Protected Quote.25 The Exchange proposes four exceptions to the prohibition against locked and crossed markets: When the Exchange is experiencing a failure, material delay, or malfunction of its systems or equipment; when the locking or crossing quotation was displayed at 19 Section 6 of the Plan. The Plan also contains provisions relating to the operation of the Plan including, for example, provisions relating to the entry of new parties to the Plan; withdrawal from the Plan; and amendments to the Plan. 20 A more detailed description of the Exchange’s proposed rule change may be found in the Notice, supra note 3. 21 Proposed BOX Chapter XII, Section 1. 22 Proposed BOX Chapter XII, Section 2(a). 23 Proposed BOX Chapter XII, Section 2(b)(1)– (10). In addition, the Exchange proposes to add ISOs as a new type of order under proposed BOX Chapter V, Section 14(c)(vi). 24 A ‘‘locked market’’ is defined as a quoted market in which a Protected Bid is equal to a Protected Offer. Proposed BOX Chapter XII, Section 1(h). A ‘‘crossed market’’ is defined as a quoted market in which a Protected Bid is higher than a Protected Offer. Proposed BOX Chapter XII, Section 1(e). 25 Proposed BOX Chapter XII, Section 3(a). E:\FR\FM\26AUN1.SGM 26AUN1 43202 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices a time where there is a crossed market; when an Exchange member simultaneously routes an ISO to execute against the full displayed size of any locked or crossed Protected Bid or Protected Offer; and, with respect to a locking quotation, when the order entered on the Exchange that will lock a Protected Bid or Protected Offer, is (i) not a customer order, and the Exchange can determine via identification available pursuant to the OPRA Plan that such Protected Bid or Protected Offer does not represent, in whole or in part, a customer order; or (ii) a customer order, and the Exchange can determine via identification available pursuant to the OPRA Plan that such Protected Bid or Protected Offer does not represent, in whole or in part, a customer order, and, on a case-by-case basis, the customer specifically authorizes the member to lock such Protected Bid or Protected Offer.26 The Exchange also proposes rules to permit it to continue to accept P/A Orders and Principal Orders from Participating Options Exchanges that are not able to send ISOs in order to avoid Trade-Throughs.27 In addition, BOX has proposed to include provisions that would permit the Exchange to send Principal Orders and P/A Orders to away markets for a temporary period,28 which BOX states would allow it and its Options Participants to seek the best available price for customers.29 The Exchange also proposes to delete and/or modify certain provisions of BOX rules to reflect the Exchange’s withdrawal from the Old Plan, and to amend certain provisions of BOX rules to reflect the Plan.30 The Exchange has represented that this proposed rule change would become effective upon the Exchange’s withdrawal from the Old Plan and the effectiveness of the Plan. II. Discussion and Commission’s Findings After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules 26 Proposed 27 Proposed BOX Chapter XII, Section 3(b)(1)–(4). BOX Chapter XII, Temporary Section 4. jlentini on DSKJ8SOYB1PROD with NOTICES 28 The Exchange anticipates such temporary period to be between two to eight weeks past implementation of the Plan. 29 The Exchange has stated that it intends to request exemptive relief from the Plan for a temporary period to accommodate this temporary use of Principal Orders and P/A Orders. 30 See Notice, supra note 3, at 31084, discussing proposed changes to: BOX Chapter I, Section I; BOX Chapter V, Sections 14, 16, 20, and 29; BOX Chapter VI, Section 5; and BOX Chapter X, Section 2. VerDate Nov<24>2008 17:05 Aug 25, 2009 Jkt 217001 and regulations thereunder applicable to a national securities exchange.31 In particular, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act 32 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission also finds that the proposal is consistent with Rule 608(c) of Regulation NMS under the Act, which requires that each exchange comply with the terms of any effective national market system plan of which it is a participant.33 Finally, the Commission finds that the proposed rule change is consistent with the requirements of the Plan.34 Proposed BOX Chapter XII, Section 1 would define applicable terms in a manner that are substantively identical to the defined terms of the Plan. As such, the Commission finds that proposed BOX Chapter XII, Section 1 is consistent with the Act and the Plan. Proposed BOX Chapter XII, Section 2(a) would prohibit members from effecting Trade-Throughs unless an exception applies. Proposed BOX Chapter XII, Section 2(b) would provide for ten exceptions to the general TradeThrough prohibition, relating to systems issues, trading rotations, crossed markets, ISOs, quote flickering, nonfirm quotes, complex trades, customer stopped orders, stopped orders and price improvement, and benchmark trades.35 Aside from the proposed exception relating to systems issues, each proposed exception would be substantively identical to the parallel exception under Section 5(b) of the Plan. The systems issues exception under proposed BOX Chapter XII, Section 2(b)(1) would implement the parallel exception available under Section 5(b)(i) of the Plan and would permit the Exchange to bypass the Protected Quotation of another Participant if such other Participant repeatedly fails to respond within one second to incoming 31 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). 32 15 U.S.C. 78f(b)(5). 33 17 CFR 242.608(c). Section 1 of the Plan provides in pertinent part that, ‘‘The Participants will submit to the [Commission] for approval their respective rules that will implement the framework of the Plan.’’ 34 See, supra note 4. 35 Proposed BOX Chapter XII, Section 2(b)(1)– (10). PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 orders attempting to access its Protected Quotations. The Exchange’s rule would require the Exchange to notify such nonresponding Participant immediately after (or at the same time as) electing self-help, and assess whether the cause of the problem lies with the Exchange’s own systems and, if so, take immediate steps to resolve the problem. Finally, the Exchange would be required to promptly document its reasons supporting any such determination to bypass a Protected Quotation. The Commission believes that this exception should provide the Exchange with the necessary flexibility for dealing with problems that occur on an away market during the trading day. At the same time, the exception’s requirements to immediately notify such away market of its determination and also assess its own system should help prevent the use of this exception when there in fact is a problem with the Exchange’s own systems, rather than those of an away market. The Commission notes that included among the exception in proposed BOX Chapter XII, Section 2(b) would be an exception for certain transactions involving ISOs.36 An order identified as an ISO would be immediately executable by the Exchange (or any other Plan Participant that received such an order) based on the premise that the market participant sending the ISO has already attempted to access all better-priced Protected Quotations up to their displayed size. The Commission believes that this exception should help ensure more efficient and faster executions in the options markets. The Commission notes that, in addition to these rules regarding TradeThroughs, the Plan requires that each Participant establish, maintain and enforce written policies and procedures that are reasonably designed to prevent Trade-Throughs in that Participant’s market that do not fall within an applicable exception and, if relying on such exception, that are reasonably designed to assure compliance with the terms of the exception. In addition, the Commission notes that the Plan requires each Participant to conduct surveillance of its market on a regular basis to ascertain the effectiveness of such policies and procedures and to take prompt action to remedy any deficiencies in such policies and procedures. Accordingly, the Commission finds that proposed BOX Chapter XII, Section 2 is consistent with Section 5 of the Plan and Section 6(b)(5) of the Act 37 36 Proposed 37 15 E:\FR\FM\26AUN1.SGM BOX Chapter XII, Section 2(b)(4). U.S.C. 78f(b)(5). 26AUN1 jlentini on DSKJ8SOYB1PROD with NOTICES Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Proposed BOX Chapter XII, Section 3(a) would require Exchange members to reasonably avoid displaying, and not engage in a pattern or practice of displaying, any quotation that locks or crosses a Protected Quotation, subject to certain exceptions delineated in proposed BOX Chapter XII, Section 3(b). The Commission recognizes that locked and crossed markets may occur accidentally and cannot always be avoided. However, the Commission believes that giving priority to the firstdisplayed Protected Bid or Protected Offer, particularly when it includes a public customer’s order, will encourage price discovery and contribute to fair and orderly markets. Therefore, the Commission believes that the proposed rule, which corresponds to the Plan’s language, to require members to reasonably avoid displaying, and not engaging in a pattern or practice of, locks and crosses is appropriate. Proposed BOX Chapter XII, Section 3(b) would permit four exceptions to the Exchange’s general rule relating to locked and crossed markets.38 The first three would be similar to analogous certain trade-through exceptions under proposed BOX Chapter XII, Section 2(b), and relate to when the Exchange is experiencing systems issues, when there is exists a crossed market, and when a member simultaneously routes ISOs against the full displayed size of any locked or crossed Protected Bid or Protected Offer. The fourth exception would permit an order entered onto the Exchange to lock a Protected Bid or Protected Offer when such order is: (1) Not a customer order, and the Exchange can determine that such Protected Bid or Protected Offer does not represent, in whole or in part, a customer order; or (2) a customer order, and the Exchange can determine that such Protected Bid or Protected Offer does not represent, in whole or in part, a customer order and, on a caseby-case basis, the customer specifically authorizes the Exchange’s member to lock such Protected Bid or Protected Offer. This exception would not protect 38 Section 6 of the Plan permits exceptions to the Plan’s locked and crossed market rules as may be contained in the rules of a Participant approved by the Commission. VerDate Nov<24>2008 17:05 Aug 25, 2009 Jkt 217001 a market maker quote or broker-dealer order from being locked. The Commission believes that the Exchange’s proposed rules relating to locked and crossed markets are consistent with the Plan and the Act and should help ensure that the display of locked or crossed markets will be limited and that any such display will be promptly reconciled. The Commission also believes that each of the proposed exceptions to locked and crossed markets relate to circumstances when it is appropriate to permit a limited, narrow exception to the general locked and crossed market rule. In particular, the Commission believes that the fourth exception is appropriate because it would protect customer orders that are Protected Bids or Protected Offers from being locked, and would only permit a customer order entered on to the Exchange to lock a Protected Bid or Protected Offer when a customer specifically authorizes an Exchange member, and only when such Protected Bid or Protected Offer itself does not represent, in whole or in part, a customer order. Because of the rapidity with which options quotes are often updated today, particularly in response to changes in the underlying, there is an increasing likelihood that market maker quotations will lock each other. The proposed exception accounts for this dynamic by not prohibiting such locking instances. Importantly, the proposed exception in the Exchange’s rules that the Commission is approving would allow non-customer orders to lock an away market’s Protected Quotation only if the Exchange is able to affirmatively determine that the Protected Quotation on the away market is not, in whole or in part, for the account of a customer. If any portion of such away market’s Protected Quotation is for the account of a customer, such Protected Quotation may not be locked. In addition, the Commission notes that the rule requires that such determination be made via identification available pursuant to the OPRA Plan, which is working with the participating options exchanges on a method to so identify customer quotations through OPRA. Therefore, the Commission finds that Exchange’s rule regarding locked and crossed markets appropriately implements Section 6 of the Plan, and is consistent with Section 6(b)(5) of the Act 39 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and 39 15 PO 00000 U.S.C. 78f(b)(5). Frm 00110 Fmt 4703 Sfmt 4703 43203 perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission also finds that proposed BOX Chapter XII, Temporary Section 4, which facilitates the participation of certain Participating Options Exchanges, including BOX, who may require the use of P/A Orders and Principal Orders after implementation of the Plan, and would permit BOX to transmit P/A Orders and Principal Orders, is consistent with the Act. Although the Commission has already approved the Plan,40 the Commission also recognizes that the Exchange and other Plan Participants may require a temporary transition period during which they may want to utilize these order types that exist currently under the Old Plan.41 The Exchange and each of the other Participating Options Exchanges have proposed substantially identical temporary provisions to accommodate this.42 Further, because the Exchange intends also to send P/A Orders and Principal Orders for a temporary period, the Exchange has proposed temporary rules to permit this.43 The Commission finds that the proposed rule relating to the Exchange’s receipt and handling, and transmission of P/A Orders and Principal Orders, and imposing certain obligations on the Exchange with respect to such orders that are similar to those that exist under the Old Plan, is appropriate and consistent with Section 6(b)(5) of the Act 44 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Finally, the Commission finds that that BOX’s other proposed changes are appropriate and consistent with the Act. 40 See Plan Approval, supra note 4. Commission notes that any Participating Options Exchange that wishes to utilize such order types in a manner that would result in a TradeThrough would need to separately request an exemption from the Plan for such use. See, supra note 29. 42 The Commission notes that the rules contained in BOX Chapter XII, Temporary Rule 4 are not required by the Plan, but rather are rules proposed by the Exchange in order to facilitate the participation in the Plan of certain exchanges, including BOX, during an initial transition period. 43 See, supra note 29. 44 15 U.S.C. 78f(b)(5). 41 The E:\FR\FM\26AUN1.SGM 26AUN1 43204 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,45 that the proposed rule change (SR–BX–2009– 028), as modified by Amendment No. 1, be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.46 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–20541 Filed 8–25–09; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60536; File No. SR–ISE– 2009–59] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Fee Changes and an Incentive Plan for Three Foreign Currency Options August 19, 2009. jlentini on DSKJ8SOYB1PROD with NOTICES Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on August 3, 2009, the International Securities Exchange, LLC (the ‘‘Exchange’’ or the ‘‘ISE’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change, as described in Items I, II, and III below, which items have been prepared by the selfregulatory organization. ISE has designated this proposal as one establishing or changing a due, fee, or other charge applicable only to a member under Section 19(b)(3)(A)(ii) of the Act,3 and Rule 19b–4(f)(2) thereunder,4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The ISE is proposing to initiate an incentive plan for market makers in three newly listed foreign currency options (‘‘FX Options’’) and to establish fees for transactions in these FX Options. The text of the proposed rule 45 15 U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A)(ii). 4 17 CFR 240.19b–4(f)(2). 46 17 VerDate Nov<24>2008 17:05 Aug 25, 2009 Jkt 217001 change is available on the Exchange’s Web site (https://www.ise.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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this proposed rule change is to initiate an incentive plan for market makers on three newly listed FX Options, specifically, the New Zealand dollar (‘‘NZD’’), the Mexican peso (‘‘PZO’’) and the Swedish krona (‘‘SKA’’) 5 and to establish fees for transactions in these products. Options on NZD, PZO and SKA began trading on the Exchange on August 3, 2009. As such, this proposed fee change will be operative and effective on August 3, 2009. In order to promote trading in these new FX Options, the Exchange proposes to initiate an incentive plan for market makers in NZD, PZO and SKA. Market makers will be able to enter into the incentive plan until October 5, 2009. Participants in the incentive plan are known on the Exchange’s Schedule of Fees as Early Adopter Market Makers. Under the incentive plan, the Exchange will waive the applicable transaction fees for both the Early Adopter FXPMM 6 and all Early Adopter FXCMMs 7 that make a market in NZD, PZO and SKA for as long as the incentive plan is in effect. Further, pursuant to a revenue sharing agreement 5 The Commission previously approved the trading of options on NZD, PZO and SKA. See Securities Exchange Act Release No. 55575 (April 3, 2007), 72 FR 17963 (April 10, 2007) (Order approving the listing and trading of FX Options). 6 A FXPMM is a primary market maker selected by the Exchange that trades and quotes in FX Options only. See ISE Rule 2213. 7 A FXCMM is a competitive market maker selected by the Exchange that trades and quotes in FX Options only. See ISE Rule 2213. PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 entered into between an Early Adopter Market Maker and ISE, the Exchange will pay the Early Adopter FXPMM forty percent (40%) of the transaction fees collected on any customer trade in NZD, PZO and SKA and will pay up to ten (10) Early Adopter FXCMMs that participate in the incentive plan twenty percent (20%) of the transaction fees collected for trades between a customer and that FXCMM. Market makers that do not participate in the incentive plan, i.e., market makers that begin to quote and trade in NZD, PZO and SKA after October 5, 2009, will be charged regular transaction fees for trades in these products. The Exchange is proposing to adopt an execution fee of $0.40 per contract for all Public Customer transactions in options on NZD, PZO and SKA.8 The amount of the execution fee for all Firm Proprietary transactions will be $0.20 per contract and the execution fee for all non-Early Adopter ISE Market Makers in NZD, PZO and SKA shall be equal to the execution fee currently charged by the Exchange for ISE Market Maker transactions in equity options.9 Finally, the amount of the execution fee for all non-ISE Market Maker transactions in these products shall be $0.45 per contract.10 The Exchange will not charge a Payment for Order Flow fee for these products. The Exchange also [sic] proposes to waive transaction charges for all Early Adopter Market Makers in NZD, PZO and SKA in order to further encourage the trading of these FX Options. The Exchange believes that the revenue generated from customer, firm proprietary and non-ISE market maker transaction charges and increased order flow would offset the transaction fees that would otherwise be applied to market makers in NZD, PZO and SKA, thereby allowing the Exchange to recoup those fees while increasing order flow and generating increased revenues. The Exchange believes the proposed rule change will further the Exchange’s 8 These fees will be charged only to Exchange members. Under a pilot program that is set to expire on July 31, 2010, these fees will also be charged to Linkage Principal Orders (‘‘Linkage P Orders’’) and Linkage Principal Acting as Agent Orders (‘‘Linkage P/A Orders’’). The amount of the execution fee charged by the Exchange for Linkage P Orders and Linkage P/A Orders is $0.27 per contract side and $0.18 per contract side, respectively. See Securities Exchange Act Release No. 60175 (June 25, 2009), 74 FR 32026 (July 6, 2009) (SR–ISE–2009–36). 9 The Exchange applies a sliding scale, between $0.01 and $0.18 per contract side, based on the number of contracts an ISE market maker trades in a month. 10 The amount of the execution fee for non-ISE Market Maker transactions executed in the Exchange’s Facilitation and Solicitation Mechanisms is $0.20 per contract. E:\FR\FM\26AUN1.SGM 26AUN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Notices]
[Pages 43200-43204]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20541]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60530; File No. SR-BX-2009-028]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order 
Granting Approval of a Proposed Rule Change To Adopt Rules To Implement 
the Options Order Protection and Locked/Crossed Market Plan

August 18, 2009.

I. Introduction

    On June 16, 2009, the NASDAQ OMX BX, Inc. (``BX'' 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 and adopt rules to implement the Options Order Protection and 
Locked/Crossed Market Plan. The proposed rule change was published for 
comment in the Federal Register on June 29, 2009.\3\ The Commission 
received no comments on the proposal. This order approves the proposed 
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 60158 (June 22, 
2009), 74 FR 31081 (``Notice'').
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II. Description of the Proposal

    The Exchange proposes to amend and adopt new rules of the Boston 
Options Exchange Group, LLC (``BOX'') to implement the Options Order 
Protection and Locked/Crossed Market
    Plan (``Plan'').\4\ Specifically, the Exchange proposes to replace 
current

[[Page 43201]]

Chapter XII of the BOX Rules with new rules implementing the Plan, 
amend other Exchange rules to reflect the Plan, and delete rules 
rendered unnecessary by the Plan.
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    \4\ The Plan is a national market system plan proposed by the 
seven existing options exchanges and approved by the Commission. See 
Securities Exchange Act Release No. 59647 (March 30, 2009), 74 FR 
15010 (April 2, 2009) (File No. 4-546) (``Plan Notice'') and 60405 
(July 30, 2009), 74 FR 39362 (August 6, 2009) (File No. 4-546) 
(``Plan Approval''). The seven options exchanges are: Chicago Board 
Options Exchange, Incorporated (``CBOE''); International Securities 
Exchange, LLC (``ISE''); The NASDAQ Stock Market LLC (``Nasdaq''); 
NASDAQ OMX PHLX, Inc. (``Phlx''); NYSE Amex LLC (``NYSE Amex''); 
NYSE Arca, Inc. (``NYSE Arca''); and BOX (each exchange individually 
a ``Participant'' and, together, the ``Participating Options 
Exchanges'').
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The Old Plan

    Each of the Participating Options Exchanges are signatories to the 
Plan for the Purpose of Creating and Operating an Intermarket Option 
Linkage (``Old Plan'').\5\ In pertinent part, the Old Plan generally 
requires its participants to avoid trading at a price inferior to the 
national best bid or offer (``trade-through''), although it provides 
for a number of exceptions to trade-through liability.\6\ The 
Participating Options Exchanges comply with this requirement of the Old 
Plan by utilizing a stand alone system (``Linkage Hub'') to send and 
receive specific order types,\7\ namely Principal Acting as Agent 
Orders (``P/A Orders''), Principal Orders, and Satisfaction Orders.\8\ 
The Old Plan also provided that dissemination of ``locked'' or 
``crossed'' markets should be avoided, and remedial actions that should 
be taken to unlock or uncross such market.\9\ Each of the Participating 
Options Exchanges, including the Exchange, has submitted an amendment 
to the Old Plan to withdraw from such Plan.\10\ The withdrawals will be 
effective upon approval by the Commission of such amendments pursuant 
to Rule 608 of Regulation NMS under the Act (``Regulation NMS'').\11\
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    \5\ On July 28, 2000, the Commission approved the Old Plan as a 
national market system plan for the purpose of creating and 
operating an intermarket options market linkage proposed by the 
American Stock Exchange LLC (n/k/a NYSE Amex), CBOE, and ISE. See 
Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 
48023 (August 4, 2000). Subsequently, Philadelphia Stock Exchange, 
Inc. (n/k/a Phlx), Pacific Exchange, Inc. (n/k/a NYSE Arca), Boston 
Stock Exchange, Inc. (n/k/a BOX), and Nasdaq joined the Linkage 
Plan. See Securities Exchange Act Release Nos. 43573 (November 16, 
2000), 65 FR 70851 (November 28, 2000); 43574 (November 16, 2000), 
65 FR 70850 (November 28, 2000); 49198 (February 5, 2004), 69 FR 
7029 (February 12, 2004); and 57545 (March 21, 2008), 73 FR 16394 
(March 27, 2008).
    \6\ Section 8(c) of the Old Plan.
    \7\ The Linkage Hub is a centralized data communications network 
that electronically links the Participating Options Exchanges to one 
another. The Options Clearing Corporation (``OCC'') operates the 
Linkage Hub.
    \8\ Section 2(16) of the Old Plan.
    \9\ Section 7(a)(i)(C) of the Old Plan.
    \10\ See Securities Exchange Act Release No. 60360 (July 21, 
2009) 74 FR 37265 (July 28, 2009) (File No. 4-429).
    \11\ 17 CFR 242.608.
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The Plan

    The Plan does not require a central linkage mechanism akin to the 
Old Plan's Linkage Hub. Instead, the Plan includes the framework for 
routing orders via private linkages that exist for NMS stocks under 
Regulation NMS.\12\ The Plan requires the Participating Options 
Exchanges to adopt rules ``reasonably designed to prevent Trade-
Throughs.'' \13\ Participating Options Exchanges are also required to 
conduct surveillance of their respective markets on a regular basis to 
ascertain the effectiveness of the policies and procedures to prevent 
Trade-Throughs and to take prompt action to remedy deficiencies in such 
policies and procedures.\14\ As further described below, the Plan 
incorporates a number of exceptions to trade-through liability.\15\ 
Some of these exceptions are carried over from the Old Plan, including 
exceptions for trading rotations, non-firm quotes, and complex 
trades.\16\ Others are substantially similar to exceptions available 
for NMS stocks under Regulation NMS, such as exceptions for systems 
issues, crossed markets, quote flickering, customer stopped orders, 
benchmark trades and, notably, intermarket sweep orders (``ISOs'').\17\ 
In addition, the Plan contains a new exception for stopped orders and 
price improvement.\18\
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    \12\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005) (File No. S7-10-04); 17 CFR 
242.600 et seq. For discussions of the similarities between the 
provisions of Regulation NMS and the provisions in the Plan, see 
Plan Notice and Plan Approval, supra note 5.
    \13\ Under the Plan, a ``Trade-Through'' is generally defined as 
a transaction in an option series, either as principal or agent, at 
a price that is lower than a Protected Bid or higher than a 
Protected Offer.'' See Section 2(21) of the Plan. A ``Protected 
Bid'' and ``Protected Offer'' generally means a bid or offer in an 
option series, respectively, that is displayed by a Participant, is 
disseminated pursuant to the Options Price Reporting Authority 
(``OPRA'') Plan, and is the Best Bid or Best Offer. See Section 
2(17) of the Plan. A ``Best Bid'' or ``Best Offer'' means the 
highest bid price and the lowest offer price. Section (2)(1) of the 
Plan. ``Protected Bid'' and ``Protected Offer,'' together are 
referred to herein as ``Protected Quotation.'' See Section 2(18) of 
the Plan.
    \14\ Section 5(a)(ii) of the Plan.
    \15\ Section 5(b) of the Plan.
    \16\ Subparagraphs (ii), (vii), and (viii), respectively, of 
Section 5(b) of the Plan.
    \17\ Subparagraphs (i), (iii), (vi), (ix), (xi), and (iv)-(v), 
respectively, of Section 5(b) of the Plan.
    \18\ Subparagraph (x) of Section 5(b) of the Plan.
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    The Plan also requires each Participant to establish, maintain, and 
enforce written rules that: Require its members reasonably to avoid 
displaying locked and crossed markets; assure the reconciliation of 
locked and crossed markets; and prohibit its members from engaging in a 
pattern or practice of displaying locked and crossed markets; subject 
to exceptions as may be contained in the rules of the Participant, as 
approved by the Commission.\19\
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    \19\ Section 6 of the Plan. The Plan also contains provisions 
relating to the operation of the Plan including, for example, 
provisions relating to the entry of new parties to the Plan; 
withdrawal from the Plan; and amendments to the Plan.
---------------------------------------------------------------------------

The Exchange's Proposal

    To implement the Plan, the Exchange proposes to replace its current 
rules relating to the Old Plan with new rules relating to the Plan, and 
makes amendments to other rules as necessary to conform to the 
requirements of the Plan.\20\ As such, the Exchange proposes to adopt 
all applicable definitions from the Plan into the Exchange's rules.\21\
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    \20\ A more detailed description of the Exchange's proposed rule 
change may be found in the Notice, supra note 3.
    \21\ Proposed BOX Chapter XII, Section 1.
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    In addition, the Exchange proposes to prohibit its members from 
effecting Trade-Throughs, unless an exception applies.\22\ Consistent 
with the Plan, the Exchange also proposes exceptions to the prohibition 
on trade throughs relating to: System issues; trading rotations; 
crossed markets; intermarket sweep orders; quote flickering; non-firm 
quotes; complex trades; customer stopped orders; stopped orders and 
price improvement; and benchmark trades.\23\
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    \22\ Proposed BOX Chapter XII, Section 2(a).
    \23\ Proposed BOX Chapter XII, Section 2(b)(1)-(10). In 
addition, the Exchange proposes to add ISOs as a new type of order 
under proposed BOX Chapter V, Section 14(c)(vi).
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    The Exchange also proposes a rule to address locked and crossed 
markets, as required by the Plan.\24\ Specifically, the Exchange 
proposes that, except for quotations that fall within a stated 
exception, members shall reasonably avoid displaying, and shall not 
engage in a pattern or practice of displaying, any quotations that lock 
or cross a Protected Quote.\25\
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    \24\ A ``locked market'' is defined as a quoted market in which 
a Protected Bid is equal to a Protected Offer. Proposed BOX Chapter 
XII, Section 1(h). A ``crossed market'' is defined as a quoted 
market in which a Protected Bid is higher than a Protected Offer. 
Proposed BOX Chapter XII, Section 1(e).
    \25\ Proposed BOX Chapter XII, Section 3(a).
---------------------------------------------------------------------------

    The Exchange proposes four exceptions to the prohibition against 
locked and crossed markets: When the Exchange is experiencing a 
failure, material delay, or malfunction of its systems or equipment; 
when the locking or crossing quotation was displayed at

[[Page 43202]]

a time where there is a crossed market; when an Exchange member 
simultaneously routes an ISO to execute against the full displayed size 
of any locked or crossed Protected Bid or Protected Offer; and, with 
respect to a locking quotation, when the order entered on the Exchange 
that will lock a Protected Bid or Protected Offer, is (i) not a 
customer order, and the Exchange can determine via identification 
available pursuant to the OPRA Plan that such Protected Bid or 
Protected Offer does not represent, in whole or in part, a customer 
order; or (ii) a customer order, and the Exchange can determine via 
identification available pursuant to the OPRA Plan that such Protected 
Bid or Protected Offer does not represent, in whole or in part, a 
customer order, and, on a case-by-case basis, the customer specifically 
authorizes the member to lock such Protected Bid or Protected 
Offer.\26\
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    \26\ Proposed BOX Chapter XII, Section 3(b)(1)-(4).
---------------------------------------------------------------------------

    The Exchange also proposes rules to permit it to continue to accept 
P/A Orders and Principal Orders from Participating Options Exchanges 
that are not able to send ISOs in order to avoid Trade-Throughs.\27\ In 
addition, BOX has proposed to include provisions that would permit the 
Exchange to send Principal Orders and P/A Orders to away markets for a 
temporary period,\28\ which BOX states would allow it and its Options 
Participants to seek the best available price for customers.\29\
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    \27\ Proposed BOX Chapter XII, Temporary Section 4.
    \28\ The Exchange anticipates such temporary period to be 
between two to eight weeks past implementation of the Plan.
    \29\ The Exchange has stated that it intends to request 
exemptive relief from the Plan for a temporary period to accommodate 
this temporary use of Principal Orders and P/A Orders.
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    The Exchange also proposes to delete and/or modify certain 
provisions of BOX rules to reflect the Exchange's withdrawal from the 
Old Plan, and to amend certain provisions of BOX rules to reflect the 
Plan.\30\
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    \30\ See Notice, supra note 3, at 31084, discussing proposed 
changes to: BOX Chapter I, Section I; BOX Chapter V, Sections 14, 
16, 20, and 29; BOX Chapter VI, Section 5; and BOX Chapter X, 
Section 2.
---------------------------------------------------------------------------

    The Exchange has represented that this proposed rule change would 
become effective upon the Exchange's withdrawal from the Old Plan and 
the effectiveness of the Plan.

II. Discussion and Commission's Findings

    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.\31\ In particular, the Commission finds that the 
proposal is consistent with Section 6(b)(5) of the Act \32\ which 
requires, among other things, that the rules of a national securities 
exchange be designed to promote just and equitable principles of trade, 
to remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest. The Commission also finds that the 
proposal is consistent with Rule 608(c) of Regulation NMS under the 
Act, which requires that each exchange comply with the terms of any 
effective national market system plan of which it is a participant.\33\ 
Finally, the Commission finds that the proposed rule change is 
consistent with the requirements of the Plan.\34\
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    \31\ 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).
    \32\ 15 U.S.C. 78f(b)(5).
    \33\ 17 CFR 242.608(c). Section 1 of the Plan provides in 
pertinent part that, ``The Participants will submit to the 
[Commission] for approval their respective rules that will implement 
the framework of the Plan.''
    \34\ See, supra note 4.
---------------------------------------------------------------------------

    Proposed BOX Chapter XII, Section 1 would define applicable terms 
in a manner that are substantively identical to the defined terms of 
the Plan. As such, the Commission finds that proposed BOX Chapter XII, 
Section 1 is consistent with the Act and the Plan.
    Proposed BOX Chapter XII, Section 2(a) would prohibit members from 
effecting Trade-Throughs unless an exception applies. Proposed BOX 
Chapter XII, Section 2(b) would provide for ten exceptions to the 
general Trade-Through prohibition, relating to systems issues, trading 
rotations, crossed markets, ISOs, quote flickering, non-firm quotes, 
complex trades, customer stopped orders, stopped orders and price 
improvement, and benchmark trades.\35\ Aside from the proposed 
exception relating to systems issues, each proposed exception would be 
substantively identical to the parallel exception under Section 5(b) of 
the Plan.
---------------------------------------------------------------------------

    \35\ Proposed BOX Chapter XII, Section 2(b)(1)-(10).
---------------------------------------------------------------------------

    The systems issues exception under proposed BOX Chapter XII, 
Section 2(b)(1) would implement the parallel exception available under 
Section 5(b)(i) of the Plan and would permit the Exchange to bypass the 
Protected Quotation of another Participant if such other Participant 
repeatedly fails to respond within one second to incoming orders 
attempting to access its Protected Quotations. The Exchange's rule 
would require the Exchange to notify such non-responding Participant 
immediately after (or at the same time as) electing self-help, and 
assess whether the cause of the problem lies with the Exchange's own 
systems and, if so, take immediate steps to resolve the problem. 
Finally, the Exchange would be required to promptly document its 
reasons supporting any such determination to bypass a Protected 
Quotation. The Commission believes that this exception should provide 
the Exchange with the necessary flexibility for dealing with problems 
that occur on an away market during the trading day. At the same time, 
the exception's requirements to immediately notify such away market of 
its determination and also assess its own system should help prevent 
the use of this exception when there in fact is a problem with the 
Exchange's own systems, rather than those of an away market.
    The Commission notes that included among the exception in proposed 
BOX Chapter XII, Section 2(b) would be an exception for certain 
transactions involving ISOs.\36\ An order identified as an ISO would be 
immediately executable by the Exchange (or any other Plan Participant 
that received such an order) based on the premise that the market 
participant sending the ISO has already attempted to access all better-
priced Protected Quotations up to their displayed size. The Commission 
believes that this exception should help ensure more efficient and 
faster executions in the options markets.
---------------------------------------------------------------------------

    \36\ Proposed BOX Chapter XII, Section 2(b)(4).
---------------------------------------------------------------------------

    The Commission notes that, in addition to these rules regarding 
Trade-Throughs, the Plan requires that each Participant establish, 
maintain and enforce written policies and procedures that are 
reasonably designed to prevent Trade-Throughs in that Participant's 
market that do not fall within an applicable exception and, if relying 
on such exception, that are reasonably designed to assure compliance 
with the terms of the exception. In addition, the Commission notes that 
the Plan requires each Participant to conduct surveillance of its 
market on a regular basis to ascertain the effectiveness of such 
policies and procedures and to take prompt action to remedy any 
deficiencies in such policies and procedures.
    Accordingly, the Commission finds that proposed BOX Chapter XII, 
Section 2 is consistent with Section 5 of the Plan and Section 6(b)(5) 
of the Act \37\

[[Page 43203]]

which requires, among other things, that the rules of a national 
securities exchange be designed to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system, and, in 
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \37\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Proposed BOX Chapter XII, Section 3(a) would require Exchange 
members to reasonably avoid displaying, and not engage in a pattern or 
practice of displaying, any quotation that locks or crosses a Protected 
Quotation, subject to certain exceptions delineated in proposed BOX 
Chapter XII, Section 3(b). The Commission recognizes that locked and 
crossed markets may occur accidentally and cannot always be avoided. 
However, the Commission believes that giving priority to the first-
displayed Protected Bid or Protected Offer, particularly when it 
includes a public customer's order, will encourage price discovery and 
contribute to fair and orderly markets. Therefore, the Commission 
believes that the proposed rule, which corresponds to the Plan's 
language, to require members to reasonably avoid displaying, and not 
engaging in a pattern or practice of, locks and crosses is appropriate.
    Proposed BOX Chapter XII, Section 3(b) would permit four exceptions 
to the Exchange's general rule relating to locked and crossed 
markets.\38\ The first three would be similar to analogous certain 
trade-through exceptions under proposed BOX Chapter XII, Section 2(b), 
and relate to when the Exchange is experiencing systems issues, when 
there is exists a crossed market, and when a member simultaneously 
routes ISOs against the full displayed size of any locked or crossed 
Protected Bid or Protected Offer.
---------------------------------------------------------------------------

    \38\ Section 6 of the Plan permits exceptions to the Plan's 
locked and crossed market rules as may be contained in the rules of 
a Participant approved by the Commission.
---------------------------------------------------------------------------

    The fourth exception would permit an order entered onto the 
Exchange to lock a Protected Bid or Protected Offer when such order is: 
(1) Not a customer order, and the Exchange can determine that such 
Protected Bid or Protected Offer does not represent, in whole or in 
part, a customer order; or (2) a customer order, and the Exchange can 
determine that such Protected Bid or Protected Offer does not 
represent, in whole or in part, a customer order and, on a case-by-case 
basis, the customer specifically authorizes the Exchange's member to 
lock such Protected Bid or Protected Offer. This exception would not 
protect a market maker quote or broker-dealer order from being locked.
    The Commission believes that the Exchange's proposed rules relating 
to locked and crossed markets are consistent with the Plan and the Act 
and should help ensure that the display of locked or crossed markets 
will be limited and that any such display will be promptly reconciled. 
The Commission also believes that each of the proposed exceptions to 
locked and crossed markets relate to circumstances when it is 
appropriate to permit a limited, narrow exception to the general locked 
and crossed market rule.
    In particular, the Commission believes that the fourth exception is 
appropriate because it would protect customer orders that are Protected 
Bids or Protected Offers from being locked, and would only permit a 
customer order entered on to the Exchange to lock a Protected Bid or 
Protected Offer when a customer specifically authorizes an Exchange 
member, and only when such Protected Bid or Protected Offer itself does 
not represent, in whole or in part, a customer order. Because of the 
rapidity with which options quotes are often updated today, 
particularly in response to changes in the underlying, there is an 
increasing likelihood that market maker quotations will lock each 
other. The proposed exception accounts for this dynamic by not 
prohibiting such locking instances. Importantly, the proposed exception 
in the Exchange's rules that the Commission is approving would allow 
non-customer orders to lock an away market's Protected Quotation only 
if the Exchange is able to affirmatively determine that the Protected 
Quotation on the away market is not, in whole or in part, for the 
account of a customer. If any portion of such away market's Protected 
Quotation is for the account of a customer, such Protected Quotation 
may not be locked. In addition, the Commission notes that the rule 
requires that such determination be made via identification available 
pursuant to the OPRA Plan, which is working with the participating 
options exchanges on a method to so identify customer quotations 
through OPRA.
    Therefore, the Commission finds that Exchange's rule regarding 
locked and crossed markets appropriately implements Section 6 of the 
Plan, and is consistent with Section 6(b)(5) of the Act \39\ which 
requires, among other things, that the rules of a national securities 
exchange be designed to promote just and equitable principles of trade, 
to remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest.
---------------------------------------------------------------------------

    \39\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission also finds that proposed BOX Chapter XII, Temporary 
Section 4, which facilitates the participation of certain Participating 
Options Exchanges, including BOX, who may require the use of P/A Orders 
and Principal Orders after implementation of the Plan, and would permit 
BOX to transmit P/A Orders and Principal Orders, is consistent with the 
Act. Although the Commission has already approved the Plan,\40\ the 
Commission also recognizes that the Exchange and other Plan 
Participants may require a temporary transition period during which 
they may want to utilize these order types that exist currently under 
the Old Plan.\41\ The Exchange and each of the other Participating 
Options Exchanges have proposed substantially identical temporary 
provisions to accommodate this.\42\ Further, because the Exchange 
intends also to send P/A Orders and Principal Orders for a temporary 
period, the Exchange has proposed temporary rules to permit this.\43\ 
The Commission finds that the proposed rule relating to the Exchange's 
receipt and handling, and transmission of P/A Orders and Principal 
Orders, and imposing certain obligations on the Exchange with respect 
to such orders that are similar to those that exist under the Old Plan, 
is appropriate and consistent with Section 6(b)(5) of the Act \44\ 
which requires, among other things, that the rules of a national 
securities exchange be designed to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system, and, in 
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \40\ See Plan Approval, supra note 4.
    \41\ The Commission notes that any Participating Options 
Exchange that wishes to utilize such order types in a manner that 
would result in a Trade-Through would need to separately request an 
exemption from the Plan for such use. See, supra note 29.
    \42\ The Commission notes that the rules contained in BOX 
Chapter XII, Temporary Rule 4 are not required by the Plan, but 
rather are rules proposed by the Exchange in order to facilitate the 
participation in the Plan of certain exchanges, including BOX, 
during an initial transition period.
    \43\ See, supra note 29.
    \44\ 15 U.S.C. 78f(b)(5).
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    Finally, the Commission finds that that BOX's other proposed 
changes are appropriate and consistent with the Act.

[[Page 43204]]

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\45\ that the proposed rule change (SR-BX-2009-028), as modified by 
Amendment No. 1, be, and it hereby is, approved.
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    \45\ 15 U.S.C. 78s(b)(2).
    \46\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\46\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-20541 Filed 8-25-09; 8:45 am]
BILLING CODE 8010-01-P

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