Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1, to Rule 20.6 of BATS Exchange, Inc., 77557-77573 [2014-30127]

Download as PDF Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B) 13 of the Act to determine whether the proposed rule change should be approved or disapproved. 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–BYX– 2014–039, and should be submitted on or before January 14, 2015. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.14 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2014–30118 Filed 12–23–14; 8:45 am] Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BYX–2014–039 on the subject line. mstockstill on DSK4VPTVN1PROD with NOTICES IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1, to Rule 20.6 of BATS Exchange, Inc. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–BYX–2014–039. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (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 Web site viewing and printing in the Commission’s Public Reference Room at 100 F Street NE., Washington, DC 20549–1090 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–73884; File No. SR–BATS– 2014–067] December 18, 2014. 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 December 4, 2014, BATS Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. On December 17, 2014, the Exchange filed Amendment No. 1 to the proposed rule change, which amended and replaced the proposed rule change in its entirety. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange filed a proposal to replace current Rule 20.6 (‘‘Current Rule’’), entitled ‘‘Obvious Error,’’ with new Rule 20.6 (‘‘Proposed Rule’’), entitled ‘‘Nullification and Adjustment of Options Transactions including Obvious Errors.’’ Rule 20.6 relates to the adjustment and nullification of transactions that occur on the Exchange’s equity options platform (‘‘BATS Options’’). The text of the proposed rule change is available at the Exchange’s Web site 14 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 13 15 U.S.C. 78s(b)(2)(B). VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 77557 at https://www.batstrading.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 Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Background For several months the Exchange has been working with other options exchanges to identify ways to improve the process related to the adjustment and nullification of erroneous options transactions. The goal of the process that the options exchanges have undertaken is to adopt harmonized rules related to the adjustment and nullification of erroneous options transactions as well as a specific provision related to coordination in connection with large-scale events involving erroneous options transactions. As described below, the Exchange believes that the changes the options exchanges and the Exchange have agreed to propose will provide transparency and finality with respect to the adjustment and nullification of erroneous options transactions. Particularly, the proposed changes seek to achieve consistent results for participants across U.S. options exchanges while maintaining a fair and orderly market, protecting investors and protecting the public interest. The Proposed Rule is the culmination of this coordinated effort and reflects discussions by the options exchanges to universally adopt: (1) Certain provisions already in place on one or more options exchanges; and (2) new provisions that the options exchanges collectively believe will improve the handling of erroneous options transactions. Thus, although the Proposed Rule is in many ways similar to and based on the Exchange’s Current Rule, the Exchange is adopting various provisions to E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77558 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices conform with existing rules of one or more options exchanges and also to adopt rules that are not currently in place on any options exchange. As noted above, in order to adopt a rule that is similar in most material respects to the rules adopted by other options exchanges, the Exchange proposes to delete the Current Rule in its entirety and to replace it with the Proposed Rule. The Exchange notes that it has proposed additional objective standards in the Proposed Rule as compared to the Current Rule. The Exchange also notes that the Proposed Rule will ensure that the Exchange will have the same standards as all other options exchanges. However, there are still areas under the Proposed Rule where subjective determinations need to be made by Exchange personnel with respect to the calculation of Theoretical Price. The Exchange notes that the Exchange and all other options exchanges have been working to further improve the review of potentially erroneous transactions as well as their subsequent adjustment by creating an objective and universal way to determine Theoretical Price in the event a reliable NBBO is not available. For instance, the Exchange and all other options exchanges may utilize an independent third party to calculate and disseminate or make available Theoretical Price. However, this initiative requires additional exchange and industry discussion as well as additional time for development and implementation. The Exchange will continue to work with other options exchanges and the options industry towards the goal of additional objectivity and uniformity with respect to the calculation of Theoretical Price. As additional background, the Exchange believes that the Proposed Rule supports an approach consistent with long-standing principles in the options industry under which the general policy is to adjust rather than nullify transactions. The Exchange acknowledges that adjustment of transactions is contrary to the operation of analogous rules applicable to the equities markets, where erroneous transactions are typically nullified rather than adjusted and where there is no distinction between the types of market participants involved in a transaction. For the reasons set forth below, the Exchange believes that the distinctions in market structure between equities and options markets continue to support these distinctions between the rules for handling obvious errors in the equities and options markets. The Exchange also believes that the VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 Proposed Rule properly balances several competing concerns based on the structure of the options markets. Various general structural differences between the options and equities markets point toward the need for a different balancing of risks for options market participants and are reflected in the Proposed Rule. Option pricing is formulaic and is tied to the price of the underlying stock, the volatility of the underlying security and other factors. Because options market participants can generally create new open interest in response to trading demand, as new open interest is created, correlated trades in the underlying or related series are generally also executed to hedge a market participant’s risk. This pairing of open interest with hedging interest differentiates the options market specifically (and the derivatives markets broadly) from the cash equities markets. In turn, the Exchange believes that the hedging transactions engaged in by market participants necessitates protection of transactions through adjustments rather than nullifications when possible and otherwise appropriate. The options markets are also quote driven markets dependent on liquidity providers to an even greater extent than equities markets. In contrast to the approximately 7,000 different securities traded in the U.S. equities markets each day, there are more than 500,000 unique, regularly quoted option series. Given this breadth in options series the options markets are more dependent on liquidity providers than equities markets; such liquidity is provided most commonly by registered market makers but also by other professional traders. With the number of instruments in which registered market makers must quote and the risk attendant with quoting so many products simultaneously, the Exchange believes that those liquidity providers should be afforded a greater level of protection. In particular, the Exchange believes that liquidity providers should be allowed protection of their trades given the fact that they typically engage in hedging activity to protect them from significant financial risk to encourage continued liquidity provision and maintenance of the quote-driven options markets. In addition to the factors described above, there are other fundamental differences between options and equities markets which lend themselves to different treatment of different classes of participants that are reflected in the Proposed Rule. For example, there is no trade reporting facility in the options markets. Thus, all transactions must occur on an options exchange. This PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 leads to significantly greater retail customer participation directly on exchanges than in the equities markets, where a significant amount of retail customer participation never reaches the Exchange but is instead executed in off-exchange venues such as alternative trading systems, broker-dealer market making desks and internalizers. In turn, because of such direct retail customer participation, the exchanges have taken steps to afford those retail customers— generally Priority Customers—more favorable treatment in some circumstances. Definitions The Exchange proposes to adopt various definitions that will be used in the Proposed Rule, as described below. First, the Exchange proposes to adopt a definition of ‘‘Customer,’’ to make clear that this term would not include any broker-dealer or Professional Customer.3 Although other portions of the Exchange’s rules address the capacity of market participants, including customers, the proposed definition is consistent with such rules and the Exchange believes it is important for all options exchanges to have the same definition of Customer in the context of nullifying and adjusting trades in order to have harmonized rules. As set forth in detail below, orders on behalf of a Customer are in many cases treated differently than nonCustomer orders in light of the fact that Customers are not necessarily immersed in the day-to-day trading of the markets, are less likely to be watching trading activity in a particular option throughout the day, and may have limited funds in their trading accounts. Second, the Exchange proposes to adopt definitions for both an ‘‘erroneous sell transaction’’ and an ‘‘erroneous buy transaction.’’ As proposed, an erroneous sell transaction is one in which the price received by the person selling the option is erroneously low, and an erroneous buy transaction is one in which the price paid by the person purchasing the option is erroneously high. This provision helps to reduce the possibility that a party can intentionally submit an order hoping for the market to move in their favor while knowing that the transaction will be nullified or adjusted if the market does not. For instance, when a market participant who is buying options in a particular series sees an aggressively priced sell order posted on the Exchange, and the 3 A ‘‘Professional’’ is any person or entity that (A) is not a broker or dealer in securities; and (B) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). See Rule 16.1(a)(45). E:\FR\FM\24DEN1.SGM 24DEN1 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices buyer believes that the price of the options is such that it might qualify for obvious error, the option buyer can trade with the aggressively priced order, then wait to see which direction the market moves. If the market moves in their direction, the buyer keeps the trade and if it moves against them, the buyer calls the Exchange hoping to get the trade adjusted or busted. Third, the Exchange proposes to adopt a definition of ‘‘Official,’’ which would mean an Officer of the Exchange or such other employee designee of the Exchange that is trained in the application of the Proposed Rule. The Exchange notes that this definition is consistent with the definition of Official currently contained in the Exchange’s Current Rule. Fourth, the Exchange proposes to adopt a new term, a ‘‘Size Adjustment Modifier,’’ which would apply to individual transactions and would modify the applicable adjustment for orders under certain circumstances, as discussed in further detail below. As proposed, the Size Adjustment Modifier will be applied to individual orders as follows: Adjustment—TP plus/minus 1–50 ............ 51–250 ........ 251–1000 .... 1001 or more mstockstill on DSK4VPTVN1PROD with NOTICES Number of contracts per execution N/A. 2 times adjustment amount. 2.5 times adjustment amount. 3 times adjustment amount. Calculation of Theoretical Price The Size Adjustment Modifier attempts to account for the additional risk that the parties to the trade undertake for transactions that are larger in scope. The Exchange believes that the Size Adjustment Modifier creates additional incentives to prevent more impactful Obvious Errors and it lessens the impact on the contra-party to an adjusted trade. The Exchange notes that these contra-parties may have preferred to only trade the size involved in the transaction at the price at which such trade occurred, and in trading larger size has committed a greater level of capital and bears a larger hedge risk. When setting the proposed size adjustment modifier thresholds the Exchange has tried to correlate the size breakpoints with typical small and larger ‘‘block’’ execution sizes of underlying stock. For instance, SEC Rule 10b–18(a)(5)(ii) defines a ‘‘block’’ as a quantity of stock that is at least 5,000 shares and a purchase price of at least $50,000, among others.4 Similarly, NYSE Rule 72 defines a ‘‘block’’ as an order to buy or sell ‘‘at least 10,000 4 See 17 CFR 240.10b–18(a)(5)(ii). VerDate Sep<11>2014 shares or a quantity of stock having a market value of $200,000 or more, whichever is less.’’ Thus, executions of 51 to 100 option contracts, which are generally equivalent to executions of 5,100 and 10,000 shares of underlying stock, respectively, are proposed to be subject to the lowest size adjustment modifier. An execution of over 1,000 contracts is roughly equivalent to a block transaction of more than 100,000 shares of underlying stock, and is proposed to be subject to the highest size adjustment modifier. The Exchange has correlated the proposed size adjustment modifier thresholds to smaller and larger scale blocks because the Exchange believes that the execution cost associated with transacting in block sizes scales according to the size of the block. In other words, in the same way that executing a 100,000 share stock order will have a proportionately larger market impact and will have a higher overall execution cost than executing a 500, 1,000 or 5,000 share order in the same stock, all other market factors being equal, executing a 1,000 option contract order will have a larger market impact and higher overall execution cost than executing a 5, 10 or 50 contract option order. 16:34 Dec 23, 2014 Jkt 235001 Theoretical Price in Normal Circumstances Under both the Current Rule and the Proposed Rule, when reviewing a transaction as potentially erroneous, the Exchange needs to first determine the ‘‘Theoretical Price’’ of the option, i.e., the Exchange’s estimate of the correct market price for the option. Pursuant to the Proposed Rule, if the applicable option series is traded on at least one other options exchange, then the Theoretical Price of an option series is the last national best bid (‘‘NBB’’) just prior to the trade in question with respect to an erroneous sell transaction or the last national best offer (‘‘NBO’’) just prior to the trade in question with respect to an erroneous buy transaction unless one of the exceptions described below exists. Thus, the Exchange proposes that whenever the Exchange has a reliable NBB or NBO, as applicable, just prior to the transaction, then the Exchange will use this NBB or NBO as the Theoretical Price. The Exchange also proposes to specify in the Proposed Rule that when a single order received by the Exchange is executed at multiple price levels, the Theoretical Price for the execution at the initial price level will be the last NBB and last NBO just prior to the Exchange’s receipt of the order, and the PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 77559 Theoretical Price for all subsequent executions at other price levels will be determined by the Exchange. The Exchange believes that it is necessary to retain discretion for the handling of an order that drills-through several price levels consistent with the reasons for the wide quote provision described below, where the Exchange too has proposed to retain discretion. The Exchange believes this is important, among other reasons, to ensure that a market participant is not intentionally targeting quotations that it knows are at other price levels in order to get an adjustment to a better price. For example, if the market in an option is $1.00 x $1.05 and a member sends a large erroneously aggressively priced buy order that will execute at multiple price points while driving the price from $1.05 to $2.50, the Exchange believes that it needs discretion in order to determine whether executions that occurred as the order made it through various price levels were erroneous or if they should be upheld. If, during the handling of the order, executions took place originally at $1.05 and then at $1.06, $1.08, $1.50, $2.00 and $2.50, these price levels were the result of the handling of the order in question. The Exchange would consider the Theoretical Price of the option to be $1.05 for the initial execution and would determine Theoretical Price for executions at all other price levels. If the market participant sending the order aggressively priced the order in a way that it would drill-through all available liquidity and buy at a price up to $2.50, then the Exchange does not believe that the market participants providing liquidity in the option on the Exchange that are on the other side of such transactions should be forced to accept an adjustment to a different price level. The Exchange believes that this situation is different than, for example, an order received during a momentary gap in liquidity. The Exchange also proposes to set forth in the Proposed Rule various provisions governing specific situations where the NBB or NBO is not available or may not be reliable. Specifically, the Exchange is proposing additional detail specifying situations in which there are no quotes or no valid quotes (as defined below), when the national best bid or offer (‘‘NBBO’’) is determined to be too wide to be reliable, and at the open of trading on each trading day. No Valid Quotes As is true under the Current Rule, pursuant to the Proposed Rule the Exchange will determine the Theoretical Price if there are no quotes or no valid E:\FR\FM\24DEN1.SGM 24DEN1 77560 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices quotes for comparison purposes. As proposed, quotes that are not valid are all quotes in the applicable option series published at a time where the last NBB is higher than the last NBO in such series (a ‘‘crossed market’’), quotes published by the Exchange that were submitted by either party to the transaction in question, and quotes published by another options exchange against which the Exchange has declared self-help. Thus, in addition to scenarios where there are literally no quotes to be used as Theoretical Price, the Exchange will exclude quotes in certain circumstances if such quotes are not deemed valid. The Proposed Rule is consistent with the Exchange’s application of the Current Rule but the descriptions of the various scenarios where the Exchange considers quotes to be invalid represent additional detail that is not included in the Current Rule. The Exchange notes that Exchange personnel currently are required to determine Theoretical Price in certain circumstances. While the Exchange continues to pursue alternative solutions that might further enhance the objectivity and consistency of determining Theoretical Price, the Exchange believes that the discretion currently afforded to Exchange Officials is appropriate in the absence of a reliable NBBO that can be used to set the Theoretical Price. Under the current Rule, Exchange personnel will generally consult and refer to data such as the prices of related series, especially the closest strikes in the option in question. Exchange personnel may also take into account the price of the underlying security and the volatility characteristics of the option as well as historical pricing of the option and/or similar options. mstockstill on DSK4VPTVN1PROD with NOTICES Wide Quotes Similarly, pursuant to the Proposed Rule the Exchange will determine the Theoretical Price if the bid/ask differential of the NBB and NBO for the affected series just prior to the erroneous transaction was equal to or greater than the Minimum Amount set forth below and there was a bid/ask differential less than the Minimum Amount during the 10 seconds prior to the transaction. If there was no bid/ask differential less than the Minimum Amount during the 10 seconds prior to the transaction then the Theoretical Price of an option series is the last NBB or NBO just prior to the transaction in question. The Exchange proposes to use the following chart to determine whether a quote is too wide to be reliable: VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 the wide quote provision off of bid price in order to provide a relatively straightforward beginning point for the Below $2.00 .......................... $0.75 analysis. $2.00 to $5.00 ...................... 1.25 As an example, assume an option is Above $5.00 to $10.00 ......... 1.50 quoted $3.00 by $6.00 with 50 contracts Above $10.00 to $20.00 ....... 2.50 Above $20.00 to $50.00 ....... 3.00 posted on each side of the market for an Above $50.00 to $100.00 ..... 4.50 extended period of time. If a market Above $100.00 ..................... 6.00 participant were to enter a market order to buy 20 contracts the Exchange believes that the buyer should have a The Exchange notes that the values reasonable expectation of paying $6.00 set forth above generally represent a for the contracts which they are buying. multiple of 3 times the bid/ask This should be the case even if differential requirements of other immediately after the purchase of those options exchanges, with certain options, the market conditions change rounding applied (e.g., $1.25 as and the same option is then quoted at proposed rather than $1.20).5 The $3.75 by $4.25. Although the quote was Exchange believes that basing the Wide wide according to the table above at the Quote table on a multiple of the time immediately prior to and the time permissible bid/ask differential rule of the execution of the market order, it provides a reasonable baseline for was also well established and well quotations that are indeed so wide that known. The Exchange believes that an they cannot be considered reliable for execution at the then prevailing market purposes of determining Theoretical Price unless they have been consistently price should not in and of itself wide. As described above, while the constitute an erroneous trade. Exchange will determine Theoretical Transactions at the Open Price when the bid/ask differential Under the Proposed Rule, for a equals or exceeds the amount set forth transaction occurring as part of the in the chart above and within the previous 10 seconds there was a bid/ask Opening Process 7 the Exchange will differential smaller than such amount, if determine the Theoretical Price where there is no NBB or NBO for the affected a quote has been persistently wide for series just prior to the erroneous at least 10 seconds the Exchange will transaction or if the bid/ask differential use such quote for purposes of of the NBBO just prior to the erroneous Theoretical Price. The Exchange transaction is equal to or greater than believes that there should be a greater the Minimum Amount set forth in the level of protection afforded to market chart proposed for the wide quote participants that enter the market when provision described above. The there are liquidity gaps and price Exchange believes that this discretion is fluctuations. The Exchange does not believe that a similar level of protection necessary because it is consistent with other scenarios in which the Exchange is warranted when market participants will determine the Theoretical Price if choose to enter a market that is wide and has been consistently wide for some there are no quotes or no valid quotes for comparison purposes, including the time. The Exchange notes that it has wide quote provision proposed by the previously determined that, given the Exchange as described above. If, largely electronic nature of today’s however, there are valid quotes and the markets, as little as one second (or less) bid/ask differential of the NBBO is less is a long enough time for market than the Minimum Amount set forth in participants to receive, process and the chart proposed for the wide quote account for and respond to new market provision described above, then the information.6 While introducing this Exchange will use the NBB or NBO just new provision the Exchange believes it prior to the transaction as it would in is being appropriately cautious by any other normal review scenario. selecting a time frame that is an order As an example of an erroneous of magnitude above and beyond what the Exchange has previously determined transaction for which the NBBO is wide at the open, assume the NBBO at the is sufficient for information time of the opening transaction is $1.00 dissemination. The table above bases x $5.00 and the opening transaction takes place at $1.25. The Exchange 5 See, e.g., NYSE Arca Options Rule 6.37(b)(1). 6 See, e.g., Exchange Rule 22.12, which requires would be responsible for determining certain orders to be exposed on BATS Options for the Theoretical Price because the NBBO at least one second before they can be executed; see was wider than the applicable minimum also Securities Exchange Act Release No. 66306 amount set forth in the wide quote (February 2, 2012), 77 FR 6608 (February 8, 2012) Bid price at time of trade Minimum amount (SR–BX–2011–084) (order granting approval of proposed rule change to reduce the duration of the PIP from one second to one hundred milliseconds). PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 7 See Exchange Rule 21.7 for a description of the Exchange’s Opening Process. E:\FR\FM\24DEN1.SGM 24DEN1 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices levels for options with Theoretical Prices above $50.00. Under the Proposed Rule, a party that believes that it participated in a transaction that was the result of an Obvious Error must notify the Exchange’s Trade Desk in the manner specified from time to time by the Exchange in a circular distributed to Members. The Exchange currently requires electronic notification through a web-based application but believes that maintaining flexibility in the Rule is important to allow for changes to the process. Obvious Errors The Exchange also proposes to adopt notification timeframes that must be met The Exchange proposes to adopt in order for a transaction to qualify as numerical thresholds that would qualify an Obvious Error. Specifically, as transactions as ‘‘Obvious Errors.’’ These proposed a filing must be received by thresholds are similar to those in place the Exchange within thirty (30) minutes under the Current Rule. As proposed, a of the execution with respect to an transaction will qualify as an Obvious execution of a Customer order and Error if the Exchange receives a properly within fifteen (15) minutes of the submitted filing and the execution price execution for any other participant. The of a transaction is higher or lower than Exchange also proposes to provide the Theoretical Price for the series by an additional time for trades that are routed amount equal to at least the amount through other options exchanges to the shown below: Exchange. Under the Proposed Rule, any other options exchange will have a Minimum Theoretical price total of forty-five (45) minutes for amount Customer orders and thirty (30) minutes Below $2.00 .......................... $0.25 for non-Customer orders, measured from $2.00 to $5.00 ...................... 0.40 the time of execution on the Exchange, Above $5.00 to $10.00 ......... 0.50 to file with the Exchange for review of Above $10.00 to $20.00 ....... 0.80 transactions routed to the Exchange Above $20.00 to $50.00 ....... 1.00 from that options exchange and Above $50.00 to $100.00 ..... 1.50 executed on the Exchange (‘‘linkage Above $100.00 ..................... 2.00 trades’’). This includes filings on behalf of another options exchange filed by a Applying the Theoretical Price, as third-party routing broker if such thirddescribed above, to determine the party broker identifies the affected applicable threshold and comparing the transactions as linkage trades. In order Theoretical Price to the actual execution to facilitate timely reviews of linkage price provides the Exchange with an trades the Exchange will accept filings objective methodology to determine from either the other options exchange whether an Obvious Error occurred. The or, if applicable, the third-party routing Exchange believes that the proposed broker that routed the applicable amounts are reasonable as they are order(s). The additional fifteen (15) generally consistent with the standards minutes provided with respect to of the Current Rule and reflect a linkage trades shall only apply to the significant disparity from Theoretical extent the options exchange that Price. The Exchange notes that the originally received and routed the order Minimum Amounts in the Proposed to the Exchange itself received a timely Rule and as set forth above are identical filing from the entering participant (i.e., to the Current Rule except for the last within 30 minutes if a Customer order two categories, for options where the or 15 minutes if a non-Customer order). Theoretical Price is above $50.00 to The Exchange believes that additional $100.00 and above $100.00. The time for filings related to Customer Exchange believes that this additional orders is appropriate in light of the fact granularity is reasonable because given that Customers are not necessarily the proliferation of additional strikes immersed in the day-to-day trading of that have been created in the past the markets and are less likely to be several years there are many more high- watching trading activity in a particular priced options that are trading with option throughout the day. The open interest for extended periods. The Exchange believes that the additional Exchange believes that it is appropriate time afforded to linkage trades is to account for these high-priced options appropriate given the interconnected with additional Minimum Amount nature of the markets today and the mstockstill on DSK4VPTVN1PROD with NOTICES provision as described above. The Exchange believes that it is necessary to determine theoretical price at the open in the event of a wide quote at the open for the same reason that the Exchange has proposed to determine theoretical price during the remainder of the trading day pursuant to the proposed wide quote provision, namely that a wide quote cannot be reliably used to determine Theoretical Price because the Exchange does not know which of the two quotes, the NBB or the NBO, is closer to the real value of the option. VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 77561 practical difficulty that an end user may face in getting requests for review filed in a timely fashion when the transaction originated at a different exchange than where the error took place. Without this additional time the Exchange believes it would be common for a market participant to satisfy the filing deadline at the original exchange to which an order was routed but that requests for review of executions from orders routed to other options exchanges would not qualify for review as potential Obvious Errors by the time filings were received by such other options exchanges, in turn leading to potentially disparate results under the applicable rules of options exchanges to which the orders were routed. Pursuant to the Proposed Rule, an Official may review a transaction believed to be erroneous on his/her own motion in the interest of maintaining a fair and orderly market and for the protection of investors. This proposed provision is designed to give an Official the ability to provide parties relief in those situations where they have failed to report an apparent error within the established notification period. A transaction reviewed pursuant to the proposed provision may be nullified or adjusted only if it is determined by the Official that the transaction is erroneous in accordance with the provisions of the Proposed Rule, provided that the time deadlines for filing a request for review described above shall not apply. The Proposed Rule would require the Official to act as soon as possible after becoming aware of the transaction; action by the Official would ordinarily be expected on the same day that the transaction occurred. However, because a transaction under review may have occurred near the close of trading or due to unusual circumstances, the Proposed Rule provides that the Official shall act no later than 8:30 a.m. Eastern Time on the next trading day following the date of the transaction in question. The Exchange also proposes to state that a party affected by a determination to nullify or adjust a transaction after an Official’s review on his or her own motion may appeal such determination in accordance with paragraph (k), which is described below. The Proposed Rule would make clear that a determination by an Official not to review a transaction or determination not to nullify or adjust a transaction for which a review was conducted on an Official’s own motion is not appealable and further that if a transaction is reviewed and a determination is rendered pursuant to another provision of the Proposed Rule, no additional relief may be granted by an Official. E:\FR\FM\24DEN1.SGM 24DEN1 77562 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices connection with this example are nonCustomer orders. • Assume Exchange A’s quoted bid at $2.50 is either executed or cancelled. • Assume Exchange B immediately thereafter receives an incoming market order to sell 100 contracts. • The incoming order would be executed against Exchange B’s resting bid at $2.05 for 100 contracts. • Because the 100 contract execution of the incoming sell order was priced at $2.05, which is $0.45 below the Theoretical Price of $2.50, the 100 contract execution would qualify for adjustment as an Obvious Error. • The normal adjustment process would adjust the execution of the 100 Buy Sell transaction transaction contracts to $2.35 per contract, which is Theoretical price the Theoretical Price minus $0.15. adjustadjust(TP) • However, because the execution ment— ment— TP plus TP minus would qualify for the Size Adjustment Modifier of 2 times the adjustment Below $3.00 ...... $0.15 $0.15 price, the adjusted transaction would At or above instead be to $2.20 per contract, which $3.00 ............. 0.30 0.30 is the Theoretical Price minus $0.30. By reference to the example above, The Exchange believes that it is the Exchange reiterates that it believes appropriate to adjust to prices a that a Size Adjustment Modifier is specified amount away from Theoretical appropriate, as the buyer in this Price rather than to adjust to Theoretical example was originally willing to buy Price because even though the Exchange 100 contracts at $2.05 and ended up has determined a given trade to be paying $2.20 per contract for such erroneous in nature, the parties in execution. Without the Size Adjustment question should have had some Modifier the buyer would have paid expectation of execution at the price or $2.35 per contract. Such buyer may be prices submitted. Also, it is common advantaged by the trade if the that by the time it is determined that an Theoretical Price is indeed closer to obvious error has occurred additional $2.50 per contract, however the buyer hedging and trading activity has already may not have wanted to buy so many occurred based on the executions that contracts at a higher price and does previously happened. The Exchange is incur increasing cost and risk due to the concerned that an adjustment to additional size of their quote. Thus, the Theoretical Price in all cases would not proposed rule is attempting to strike a appropriately incentivize market balance between various competing participants to maintain appropriate objectives, including recognition of cost controls to avoid potential errors. and risk incurred in quoting larger size Further, as proposed any nonand incentivizing market participants to Customer Obvious Error exceeding 50 maintain appropriate controls to avoid contracts will be subject to the Size errors. Adjustment Modifier described above. In contrast to non-Customer orders, The Exchange believes that it is where trades will be adjusted if they appropriate to apply the Size qualify as Obvious Errors, pursuant the Adjustment Modifier to non-Customer Proposed Rule a trade that qualifies as orders because the hedging cost an Obvious Error will be nullified where associated with trading larger sized at least one party to the Obvious Error options orders and the market impact of is a Customer. The Exchange also larger blocks of underlying can be proposes, however, that if any Member significant. submits requests to the Exchange for As an example of the application of review of transactions pursuant to the the Size Adjustment Modifier, assume Proposed Rule, and in aggregate that Exchange A has a quoted bid to buy 50 Member has 200 or more Customer contracts at $2.50, Exchange B has a transactions under review concurrently quoted bid to buy 100 contracts at $2.05 and the orders resulting in such and there is no other options exchange transactions were submitted during the quoting a bid priced higher than $2.00. course of 2 minutes or less, where at Assume that the NBBO is $2.50 by least one party to the Obvious Error is $3.00. Finally, assume that all orders a non-Customer, the Exchange will quoted and submitted to Exchange B in apply the non-Customer adjustment mstockstill on DSK4VPTVN1PROD with NOTICES If it is determined that an Obvious Error has occurred based on the objective numeric criteria and time deadlines described above, the Exchange will adjust or nullify the transaction as described below and promptly notify both parties to the trade electronically or via telephone. The Exchange proposes different adjustment and nullification criteria for Customers and non-Customers. As proposed, where neither party to the transaction is a Customer, the execution price of the transaction will be adjusted by the Official pursuant to the table below. VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 criteria described above to such transactions. The Exchange based its proposal of 200 transactions on the fact that the proposed level is reasonable as it is representative of an extremely large number of orders submitted to the Exchange that are, in turn, possibly erroneous. Similarly, the Exchange based its proposal of orders received in 2 minutes or less on the fact that this is a very short amount of time under which one Member could generate multiple erroneous transactions. In order for a participant to have more than 200 transactions under review concurrently when the orders triggering such transactions were received in 2 minutes or less, the market participant will have far exceeded the normal behavior of customers deserving protected status.8 While the Exchange continues to believe that it is appropriate to nullify transactions in such a circumstance if both participants to a transaction are Customers, the Exchange does not believe it is appropriate to place the overall risk of a significant number of trade breaks on non-Customers that in the normal course of business may have engaged in additional hedging activity or trading activity based on such transactions. Thus, the Exchange believes it is necessary and appropriate to protect non-Customers in such a circumstance by applying the non-Customer adjustment criteria, and thus adjusting transactions as set forth above, in the event a Member has more than 200 transactions under review concurrently. Catastrophic Errors Consistent with the Current Rule, the Exchange proposes to adopt separate numerical thresholds for review of transactions for which the Exchange does not receive a filing requesting review within the Obvious Error timeframes set forth above. Based on this review these transactions may qualify as ‘‘Catastrophic Errors.’’ As proposed, a Catastrophic Error will be deemed to have occurred when the execution price of a transaction is higher or lower than the Theoretical Price for the series by an amount equal to at least the amount shown below: Theoretical price Below $2.00 .......................... $2.00 to $5.00 ...................... Minimum amount $0.50 1.00 8 The Exchange notes that in the third quarter of this year across all options exchanges the average number of valid Customer orders received and executed was less than 38 valid orders every two minutes. The number of obvious errors resulting from valid orders is, of course, a very small fraction of such orders. E:\FR\FM\24DEN1.SGM 24DEN1 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices by 8:30 a.m. Eastern Time on the first trading day following the execution. For transactions in an expiring options Above $5.00 to $10.00 ......... 1.50 series that take place on an expiration Above $10.00 to $20.00 ....... 2.00 day, a party must notify the Exchange’s Above $20.00 to $50.00 ....... 2.50 Above $50.00 to $100.00 ..... 3.00 Trade Desk within 45 minutes after the Above $100.00 ..................... 4.00 close of trading that same day. As is true for requests for review under the Obvious Error provision of the Proposed Based on industry feedback on the Rule, a party requesting review of a Catastrophic Error thresholds set forth transaction as a Catastrophic Error must under the Current Rule, the thresholds notify the Exchange’s Trade Desk in the proposed as set forth above are more manner specified from time to time by granular and lower (i.e., more likely to qualify) than the thresholds under the the Exchange in a circular distributed to Current Rule. As noted above, under the Members. By definition, any execution Proposed Rule as well as the Current that qualifies as a Catastrophic Error is Rule, parties have additional time to also an Obvious Error. However, the submit transactions for review as Exchange believes it is appropriate to Catastrophic Errors. As proposed, maintain these two types of errors notification requesting review must be because the Catastrophic Error received by the Exchange’s Trade Desk provisions provide market participants Theoretical price Minimum amount with a longer notification period under which they may file a request for review with the Exchange of a potential Catastrophic Error than a potential Obvious Error. This provides an additional level of protection for transactions that are severely erroneous even in the event a participant does not submit a request for review in a timely fashion. The Proposed Rule would specify the action to be taken by the Exchange if it is determined that a Catastrophic Error has occurred, as described below, and would require the Exchange to promptly notify both parties to the trade electronically or via telephone. In the event of a Catastrophic Error, the execution price of the transaction will be adjusted by the Official pursuant to the table below. Buy transaction adjustment— TP plus Theoretical price (TP) mstockstill on DSK4VPTVN1PROD with NOTICES Below $2.00 ............................................................................................................................................................. $2.00 to $5.00 .......................................................................................................................................................... Above $5.00 to $10.00 ............................................................................................................................................ Above $10.00 to $20.00 .......................................................................................................................................... Above $20.00 to $50.00 .......................................................................................................................................... Above $50.00 to $100.00 ........................................................................................................................................ Above $100.00 ......................................................................................................................................................... Although Customer orders would be adjusted in the same manner as nonCustomer orders, any Customer order that qualifies as a Catastrophic Error will be nullified if the adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer’s limit price. Based on industry feedback, the levels proposed above with respect to adjustment amounts are the same levels as the thresholds at which a transaction may be deemed a Catastrophic Error pursuant to the chart set forth above. As is true for Obvious Errors as described above, the Exchange believes that it is appropriate to adjust to prices a specified amount away from Theoretical Price rather than to adjust to Theoretical Price because even though the Exchange has determined a given trade to be erroneous in nature, the parties in question should have had some expectation of execution at the price or prices submitted. Also, it is common that by the time it is determined that a Catastrophic Error has occurred additional hedging and trading activity has already occurred based on the executions that previously happened. The Exchange is concerned that an adjustment to Theoretical Price VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 in all cases would not appropriately incentivize market participants to maintain appropriate controls to avoid potential errors. Further, the Exchange believes it is appropriate to maintain a higher adjustment level for Catastrophic Errors than Obvious Errors given the significant additional time that can potentially pass before an adjustment is requested and applied and the amount of hedging and trading activity that can occur based on the executions at issue during such time. For the same reasons, other than honoring the limit prices established for Customer orders, the Exchange has proposed to treat all market participants the same in the context of the Catastrophic Error provision. Specifically, the Exchange believes that treating market participants the same in this context will provide additional certainty to market participants with respect to their potential exposure and hedging activities, including comfort that even if a transaction is later adjusted (i.e., past the standard time limit for filing under the Obvious Error provision), such transaction will not be fully nullified. However, as noted above, under the Proposed Rule where at least one party to the transaction is a Customer, the trade will be nullified if the adjustment PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 77563 $0.50 1.00 1.50 2.00 2.50 3.00 4.00 Sell transaction adjustment— TP minus $0.50 1.00 1.50 2.00 2.50 3.00 4.00 would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer’s limit price. The Exchange has retained the protection of a Customer’s limit price in order to avoid a situation where the adjustment could be to a price that the Customer could not afford, which is less likely to be an issue for a market professional. Significant Market Events In order to improve consistency for market participants in the case of a widespread market event and in light of the interconnected nature of the options exchanges, the Exchange proposes to adopt a new provision that calls for coordination between the options exchanges in certain circumstances and provides limited flexibility in the application of other provisions of the Proposed Rule in order to promptly respond to a widespread market event.9 9 Although the Exchange has proposed a specific provision related to coordination amongst options exchanges in the context of a widespread event, the Exchange does not believe that the Significant Market Event provision or any other provision of the proposed rule alters the Exchange’s ability to coordinate with other options exchanges in the normal course of business with respect to market events or activity. The Exchange does already coordinate with other options exchanges to the E:\FR\FM\24DEN1.SGM Continued 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77564 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices The Exchange proposes to describe such an event as a Significant Market Event, and to set forth certain objective criteria that will determine whether such an event has occurred. The Exchange developed these objective criteria in consultation with the other options exchanges by reference to historical patterns and events with a goal of setting thresholds that very rarely will be triggered so as to limit the application of the provision to truly significant market events. As proposed, a Significant Market Event will be deemed to have occurred when proposed criterion (A) below is met or the sum of all applicable event statistics, where each is expressed as a percentage of the relevant threshold in criteria (A) through (D) below, is greater than or equal to 150% and 75% or more of at least one category is reached, provided that no single category can contribute more than 100% to the sum. All criteria set forth below will be measured in aggregate across all exchanges. The proposed criteria for determining a Significant Market Event are as follows: (A) Transactions that are potentially erroneous would result in a total WorstCase Adjustment Penalty greater than or equal to $30,000,000, where the WorstCase Adjustment Penalty is computed as the sum, across all potentially erroneous trades, of: (i) $0.30 (i.e., the largest Transaction Adjustment value listed in sub-paragraph (e)(3)(A) below); times; (ii) the contract multiplier for each traded contract; times (iii) the number of contracts for each trade; times (iv) the appropriate Size Adjustment Modifier for each trade, if any, as defined in subparagraph (e)(3)(A) below; (B) Transactions involving over 500,000 options contracts are potentially erroneous; (C) Transactions with a notional value (i.e., number of contracts traded multiplied by the option premium multiplied by the contract multiplier) of more than $100,000,000 are potentially erroneous; (D) Over 10,000 transactions are potentially erroneous. As described above, the Exchange proposes to adopt a Worst Case Adjustment Penalty, proposed as criterion (A), which is the only criterion that can on its own result in an event being designated as a significant market event. The Worst Case Adjustment Penalty is intended to develop an objective criterion that can be quickly extent possible if such coordination is necessary to maintain a fair and orderly market and/or to fulfill the Exchange’s duties as a self-regulatory organization. VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 determined by the Exchange in consultation with other options exchanges that approximates the total overall exposure to market participants on the negatively impacted side of each transaction that occurs during an event. If the Worst Case Adjustment criterion exceeds $30,000,000, then an event is a Significant Market Event. As an example of the Worst Case Adjustment Penalty, assume that a single potentially erroneous transaction in an event is as follows: Sale of 100 contracts of a standard option (i.e., an option with a 100 share multiplier). The highest potential adjustment penalty for this single transaction would be $6,000, which would be calculated as $0.30 times 100 (contract multiplier) times 100 (number of contracts) times 2 (applicable Size Adjustment Modifier). The Exchange would calculate the highest potential adjustment penalty for each of the potentially erroneous transactions in the event and the Worst Case Adjustment Penalty would be the sum of such penalties on the Exchange and all other options exchanges with affected transactions. As described above, under the Proposed Rule if the Worst Case Adjustment Penalty does not exceed $30,000,000, then a Significant Market Event has occurred if the sum of all applicable event statistics (expressed as a percentage of the relevant thresholds), is greater than or equal to 150% and 75% or more of at least one category is reached. The Proposed Rule further provides that no single category can contribute more than 100% to the sum. As an example of the application of this provision, assume that in a given event across all options exchanges that: (A) The Worst Case Adjustment Penalty is $12,000,000 (40% of $30,000,000), (B) 300,000 options contracts are potentially erroneous (60% of 500,000), (C) the notional value of potentially erroneous transactions is $30,000,000 (30% of $100,000,000), and (D) 12,000 transactions are potentially erroneous (120% of 10,000). This event would qualify as a Significant Market Event because the sum of all applicable event statistics would be 230%, far exceeding the 150% threshold. The 230% sum is reached by adding 40%, 60%, 30% and last, 100% (i.e., rounded down from 120%) for the number of transactions. The Exchange notes that no single category can contribute more than 100% to the sum and any category contributing more than 100% will be rounded down to 100%. As an alternative example, assume a large-scale event occurs involving lowpriced options with a small number of contracts in each execution. Assume in PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 this event across all options exchanges that: (A) The Worst Case Adjustment Penalty is $600,000 (2% of $30,000,000), (B) 20,000 options contracts are potentially erroneous (4% of 500,000), (C) the notional value of potentially erroneous transactions is $20,000,000 (20% of $100,000,000), and (D) 20,000 transactions are potentially erroneous (200% of 10,000, but rounded down to 100%). This event would not qualify as a Significant Market Event because the sum of all applicable event statistics would be 126%, below the 150% threshold. The Exchange reiterates that as proposed, even when a single category other than criterion (A) is fully met, that does not necessarily qualify an event as a Significant Market Event. The Exchange believes that the breadth and scope of the obvious error rules are appropriate and sufficient for handling of typical and common obvious errors. Coordination between and among the exchanges should generally not be necessary even when a member has an error that results in executions on more than one exchange. In setting the thresholds above the Exchange believes that the requirements will be met only when truly widespread and significant errors happen and the benefits of coordination and information sharing far outweigh the costs of the logistics of additional intra-exchange coordination. The Exchange notes that in addition to its belief that the proposed thresholds are sufficiently high, the Exchange has proposed the requirement that either criterion (A) is met or the sum of applicable event statistics for proposed (A) through (D) equals or exceeds 150% in order to ensure that an event is sufficiently large but also to avoid situations where an event is extremely large but just misses potential qualifying thresholds. For instance, the proposal is designed to help avoid a situation where the Worst Case Adjustment Penalty is $15,000,000, so the event does not qualify based on criterion (A) alone, but there are transactions in 490,000 options contracts that are potentially erroneous (missing criterion (B) by 10,000 contracts), there transactions with a notional value of $99,000,000 (missing criterion (C) by $1,000,000), and there are 9,000 potentially erroneous transactions overall (missing criterion (D) by 1,000 transactions). The Exchange believes that the proposed formula, while slightly more complicated than simply requiring a certain threshold to be met in each category, may help to avoid inapplicability of the proposed E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices provisions in the context of an event that would be deemed significant by most subjective measures but that barely misses each of the objective criteria proposed by the Exchange. To ensure consistent application across options exchanges, in the event of a suspected Significant Market Event, the Exchange shall initiate a coordinated review of potentially erroneous transactions with all other affected options exchanges to determine the full scope of the event. Under the Proposed Rule, the Exchange will promptly coordinate with the other options exchanges to determine the appropriate review period as well as select one or more specific points in time prior to the transactions in question and use one or more specific points in time to determine Theoretical Price. Other than the selected points in time, if applicable, the Exchange will determine Theoretical Price as described above. For example, around the start of a SME that is triggered by a large and aggressively priced buy order, three exchanges have multiple orders on the offer side of the market: Exchange A has offers priced at $2.20, $2.25, $2.30 and several other price levels to $3.00, Exchange B has offers at $2.45, $2.30 and several other price levels to $3.00, Exchange C has offers at price levels between $2.50 and $3.00. Assume an event occurs starting at 10:05:25 a.m. ET and in this particular series the executions begin on Exchange A and subsequently begin to occur on Exchanges B and C. Without coordination and information sharing between the exchanges, Exchange B and Exchange C cannot know with certainty that whether or not the execution at Exchange A that happened at $2.20 immediately prior to their executions at $2.45 and $2.50 is part of the same erroneous event or not. With proper coordination, the exchanges can determine that in this series, the proper point in time from which the event should be analyzed is 10:05:25 a.m. ET, and thus, the NBO of $2.20 should be used as the Theoretical Price for purposes of all buy transactions in such options series that occurred during the event. If it is determined that a Significant Market Event has occurred then, using the parameters agreed with respect to the times from which Theoretical Price will be calculated, if applicable, an Official will determine whether any or all transactions under review qualify as Obvious Errors. The Proposed Rule would require the Exchange to use the criteria in Proposed Rule 20.6(c), as described above, to determine whether an Obvious Error has occurred for each VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 transaction that was part of the Significant Market Event. Upon taking any final action, the Exchange would be required to promptly notify both parties to the trade electronically or via telephone. The execution price of each affected transaction will be adjusted by an Official to the price provided below, unless both parties agree to adjust the transaction to a different price or agree to bust the trade. Theoretical price (TP) Buy transaction adjustment— TP plus Below $3.00 ..... At or above $3.00 ..... Sell transaction adjustment— TP minus $0.15 $0.15 $0.30 $0.30 Thus, the proposed adjustment criteria for Significant Market Events are identical to the proposed adjustment levels for Obvious Errors generally. In addition, in the context of a Significant Market Event, any error exceeding 50 contracts will be subject to the Size Adjustment Modifier described above. Also, the adjustment criteria would apply equally to all market participants (i.e., Customers and non-Customers) in a Significant Market Event. However, as is true for the proposal with respect to Catastrophic Errors, under the Proposed Rule where at least one party to the transaction is a Customer, the trade will be nullified if the adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer’s limit price. The Exchange has retained the protection of a Customer’s limit price in order to avoid a situation where the adjustment could be to a price that the Customer could not afford, which is less likely to be an issue for a market professional. The Exchange has otherwise proposed to treat all market participants the same in the context of a Significant Market Event to provide additional certainty to market participants with respect to their potential exposure as soon as an event has occurred. Another significant distinction between the proposed Obvious Error provision and the proposed Significant Market Event provision is that if the Exchange, in consultation with other options exchanges, determines that timely adjustment is not feasible due to the extraordinary nature of the situation, then the Exchange will nullify some or all transactions arising out of the Significant Market Event during the review period selected by the Exchange and other options exchanges. To the PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 77565 extent the Exchange, in consultation with other options exchanges, determines to nullify less than all transactions arising out of the Significant Market Event, those transactions subject to nullification will be selected based upon objective criteria with a view toward maintaining a fair and orderly market and the protection of investors and the public interest. For example, assume a Significant Market Event causes 25,000 potentially erroneous transactions and impacts 51 options classes. Of the 25,000 transactions, 24,000 of them are concentrated in a single options class. The exchanges may decide the most appropriate solution because it will provide the most certainty to participants and allow for the prompt resumption of regular trading is to bust all trades in the most heavily affected class between two specific points in time, while the other 1,000 trades across the other 50 classes are reviewed and adjusted as appropriate. A similar situation might arise directionally where a Customer submits both erroneous buy and sell orders and the number of errors that happened that were erroneously low priced (i.e., erroneous sell orders) were 50,000 in number but the number of errors that were erroneously high (i.e., erroneous buy orders) were only 500 in number. The most effective and efficient approach that provides the most certainty to the marketplace in a reasonable amount of time while most closely following the generally prescribed obvious error rules could be to bust all of the erroneous sell transactions but to adjust the erroneous buy transactions. With respect to rulings made pursuant to the proposed Significant Market Event provision the Exchange believes that the number of affected transactions is such that immediate finality is necessary to maintain a fair and orderly market and to protect investors and the public interest. Accordingly, rulings by the Exchange pursuant to the Significant Market Event provision would be nonappealable pursuant to the Proposed Rule. Additional Provisions Mutual Agreement In addition to the objective criteria described above, the Proposed Rule also proposes to make clear that the determination as to whether a trade was executed at an erroneous price may be made by mutual agreement of the affected parties to a particular transaction. The Proposed Rule would state that a trade may be nullified or E:\FR\FM\24DEN1.SGM 24DEN1 77566 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES adjusted on the terms that all parties to a particular transaction agree, provided, however, that such agreement to nullify or adjust must be conveyed to the Exchange in a manner prescribed by the Exchange prior to 8:30 a.m. Eastern Time on the first trading day following the execution. The Exchange also proposes to explicitly state that it is considered conduct inconsistent with just and equitable principles of trade for any Member to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder. Thus, for instance, a Member is precluded from seeking to avoid applicable tradethrough rules by executing a transaction and then adjusting such transaction to a price at which the Exchange would not have allowed it to execute at the time of the execution because it traded through the quotation of another options exchange. The Exchange notes that in connection with its obligations as a selfregulatory organization, the Exchange’s Regulatory Department reviews adjustments to transactions to detect potential violations of Exchange rules or the Act and the rules and regulations thereunder. Trading Halts Exchange Rule 20.3 describes the Exchange’s authority to declare trading halts in one or more options traded on the Exchange. The Exchange proposes to make clear in the Proposed Rule that it will nullify any transaction that occurs during a trading halt in the affected option on the Exchange pursuant to Rule 20.3. If any trades occur notwithstanding a trading halt then the Exchange believes it appropriate to nullify such transactions. While the Exchange may halt options trading for various reasons, such a scenario almost certainly is due to extraordinary circumstances and is potentially the result of market-wide coordination to halt options trading or trading generally. Accordingly, the Exchange does not believe it is appropriate to allow trades to stand if such trades should not have occurred in the first place. The Exchange proposes to modify Interpretation and Policy .01 to Rule 20.3. Currently, Interpretation and Policy .01 states that the Exchange ‘‘may’’ nullify any transaction that occurs: (a) During a trading halt in the affected option on the Exchange; or (b) with respect to equity options (including options overlying ETFs), during a trading halt on the primary listing market for the underlying security. To ensure consistency with the trading halt provision of the Proposed VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 Rule, the Exchange proposes to modify Interpretation and Policy .01 to Rule 20.3 to state that in either situation the Exchange ‘‘shall’’ nullify transactions. Erroneous Print and Quotes in Underlying Security Market participants on the Exchange likely base the pricing of their orders submitted to the Exchange on the price of the underlying security for the option. Thus, the Exchange believes it is appropriate to adopt provisions that allow adjustment or nullification of transactions based on erroneous prints or erroneous quotes in the underlying security. The Exchange proposes to adopt language in the Proposed Rule stating that a trade resulting from an erroneous print(s) disseminated by the underlying market that is later nullified by that underlying market shall be adjusted or busted as set forth in the Obvious Error provisions of the Proposed Rule, provided a party notifies the Exchange’s Trade Desk in a timely manner, as further described below. The Exchange proposes to define a trade resulting from an erroneous print(s) as any options trade executed during a period of time for which one or more executions in the underlying security are nullified and for one second thereafter. The Exchange believes that one second is an appropriate amount of time in which an options trade would be directly based on executions in the underlying equity security. The Exchange also proposes to require that if a party believes that it participated in an erroneous transaction resulting from an erroneous print(s) pursuant to the proposed erroneous print provision it must notify the Exchange’s Trade Desk within the timeframes set forth in the Obvious Error provision described above. The Exchange has also proposed to state that the allowed notification timeframe commences at the time of notification by the underlying market(s) of nullification of transactions in the underlying security. Further, the Exchange proposes that if multiple underlying markets nullify trades in the underlying security, the allowed notification timeframe will commence at the time of the first market’s notification. As an example of a situation in which a trade results from an erroneous print disseminated by the underlying market that is later nullified by the underlying market, assume that a given underlying is trading in the $49.00–$50.00 price range then has an erroneous print at $5.00. Given that there is the potential perception that the underlying has gone through a dramatic price revaluation, PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 numerous options trades could promptly trigger based off of this new price. However, because the price that triggered them was not a valid price it would be appropriate to review said option trades when the underlying print that triggered them is removed. The Exchange also proposes to add a provision stating that a trade resulting from an erroneous quote(s) in the underlying security shall be adjusted or busted as set forth in the Obvious Error provisions of the Proposed Rule, provided a party notifies the Exchange’s Trade Desk in a timely manner, as further described below. Pursuant to the Proposed Rule, an erroneous quote occurs when the underlying security has a width of at least $1.00 and has a width at least five times greater than the average quote width for such underlying security during the time period encompassing two minutes before and after the dissemination of such quote. For purposes of the Proposed Rule, the average quote width will be determined by adding the quote widths of sample quotations at regular 15-second intervals during the four-minute time period referenced above (excluding the quote(s) in question) and dividing by the number of quotes during such time period (excluding the quote(s) in question).10 Similar to the proposal with respect to erroneous prints described above, if a party believes that it participated in an erroneous transaction resulting from an erroneous quote(s) it must notify the Exchange’s Trade Desk in accordance with the notification provisions of the Obvious Error provision described above. The Proposed Rule, therefore, puts the onus on each Member to notify the Exchange if such Member believes that a trade should be reviewed pursuant to either of the proposed provisions, as the Exchange is not in position to determine the impact of erroneous prints or quotes on individual Members. The Exchange notes that it does not believe that additional time is necessary with respect to a trade based on an erroneous quote because a Member has all information necessary to detect the error at the time of an option transaction that was triggered by an erroneous quote, which is in contrast to the proposed erroneous print provision that includes a dependency on an action 10 The Exchange has proposed the price and time parameters for quote width and average quote width used to determine whether an erroneous quote has occurred based on established rules of options exchanges that currently apply such parameters. See, e.g., CBOE Rule 6.25(a)(5); NYSE Arca Rule 6.87(a)(5). Based on discussions with these exchanges, the Exchange believes that the parameters are a reasonable approach to determine whether an erroneous quote has occurred for purposes of the proposed rule. E:\FR\FM\24DEN1.SGM 24DEN1 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices by the market where the underlying security traded. As an example of a situation in which a trade results from an erroneous quote in the underlying security, assume again that a given underlying is quoting and trading in the $49.00–$50.00 price range then a liquidity gap occurs, with bidders not representing quotes in the market place and an offer quoted at $5.00. Quoting may quickly return to normal, again in the $49.00–$50.00 price range, but due to the potential perception that the underlying has gone through a dramatic price revaluation, numerous options trades could trigger based off of this new quoted price in the interim. Because the price that triggered such trades was not a valid price it would be appropriate to review said option trades. mstockstill on DSK4VPTVN1PROD with NOTICES Stop (and Stop-Limit) Order Trades Triggered by Erroneous Trades The Exchange notes that certain market participants and their customers enter stop or stop limit orders that are triggered based on executions in the marketplace. As proposed, transactions resulting from the triggering of a stop or stop-limit order by an erroneous trade in an option contract shall be nullified by the Exchange, provided a party notifies the Exchange’s Trade Desk in a timely manner as set forth below. The Exchange believes it is appropriate to nullify executions of stop or stop-limit orders that were wrongly triggered because such transactions should not have occurred. If a party believes that it participated in an erroneous transaction pursuant to the Proposed Rule it must notify the Exchange’s Trade Desk within the timeframes set forth in the Obvious Error Rule above, with the allowed notification timeframe commencing at the time of notification of the nullification of transaction(s) that triggered the stop or stop-limit order. Linkage Trades The Exchange also proposes to adopt language that clearly provides the Exchange with authority to take necessary actions when another options exchange nullifies or adjusts a transaction pursuant to its respective rules and the transaction resulted from an order that has passed through the Exchange and been routed on to another options exchange on behalf of the Exchange. Specifically, if the Exchange routes an order pursuant to the Intermarket Option Linkage Plan 11 that results in a transaction on another options exchange (a ‘‘Linkage Trade’’) and such options exchange subsequently nullifies or adjusts the 11 As defined in Exchange Rule 27.1(17). VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 Linkage Trade pursuant to its rules, the Exchange will perform all actions necessary to complete the nullification or adjustment of the Linkage Trade. Although the Exchange is not utilizing its own authority to nullify or adjust a transaction related to an action taken on a Linkage Trade by another options exchange, the Exchange does have to assist in the processing of the adjustment or nullification of the order, such as notification to the Member and the OCC of the adjustment or nullification. Thus, the Exchange believes that the proposed provision adds additional transparency to the Proposed Rule. Appeals The Exchange proposes to maintain its current appeals process in connection with the Proposed Rule. Specifically, if a member of BATS Options (‘‘Options Member’’) affected by a determination made under the Proposed Rule requests within the time permitted below, the Obvious Error Panel (‘‘Obvious Error Panel’’) will review decisions made by the BATS Official, including whether an obvious error occurred and whether the correct determination was made. In order to maintain a diverse group of participants, the Obvious Error Panel will be comprised of the Exchange’s Chief Regulatory Officer (‘‘CRO’’) or a designee of the CRO, a representative of one (1) Options Member engaged in market making (any such representative, a ‘‘MM Representative’’) and representatives from two (2) Options Members satisfying one or both of the criteria set forth below (any such representative, a ‘‘Non-MM Representative’’). To qualify as a NonMM Representative a person must: Be employed by an Options Member whose revenues from options market making activity do not exceed ten percent (10%) of its total revenues; or have as his or her primary responsibility the handling of Public Customer orders or supervisory responsibility over persons with such responsibility, and not have any responsibilities with respect to market making activities. In order to further assure a diverse group of potential participants on an Obvious Error Panel, the Exchange shall designate at least ten (10) MM Representatives and at least ten (10) Non-MM Representatives to be called upon to serve on the Obvious Error Panel as needed. To assure fairness, in no case shall an Obvious Error Panel include a person affiliated with a party to the trade in question. Also, to the extent reasonably possible, the Exchange shall call upon the designated PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 77567 representatives to participate on an Obvious Error Panel on an equally frequent basis. Under the Proposed Rule a request for review on appeal must be made in writing via email or other electronic means specified from time to time by the Exchange in a circular distributed to Options Members within thirty (30) minutes after the party making the appeal is given notification of the initial determination being appealed. The Obvious Error Panel shall review the facts and render a decision as soon as practicable, but generally on the same trading day as the execution(s) under review. On requests for appeal received after 3:00 p.m. Eastern Time, a decision will be rendered as soon as practicable, but in no case later than the trading day following the date of the execution under review. The Obvious Error Panel may overturn or modify an action taken by the BATS Official under this Rule. All determinations by the Obvious Error Panel shall constitute final action by the Exchange on the matter at issue. The Exchange believes that this is necessary given the purpose of the appeal is finality. In order to deter frivolous appeals, if the Obvious Error Panel votes to uphold the decision made pursuant to the Proposed Rule, the Exchange will assess a $500.00 fee against the Options Member(s) who initiated the request for appeal. In addition, in instances where the Exchange, on behalf of an Options Member, requests a determination by another market center that a transaction is clearly erroneous, the Exchange will pass any resulting charges through to the relevant Options Member. Any determination by an Officer or by the Obvious Error Panel shall be rendered without prejudice as to the rights of the parties to the transaction to submit their dispute to arbitration. Limit Up-Limit Down Plan The Exchange is proposing to adopt Interpretation and Policy .01 to the Proposed Rule to provide for how the Exchange will treat Obvious and Catastrophic Errors in response to the Regulation NMS Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS under the Act (the ‘‘Limit Up-Limit Down Plan’’ or the ‘‘Plan),12 which is applicable to all NMS stocks, as defined in Regulation NMS Rule 600(b)(47).13 Under the Proposed Rule, during a pilot 12 Securities Exchange Act Release No. 67091 (May 31, 2012), 77 FR 33498 (June 6, 2012) (order approving the Plan on a pilot basis). 13 17 CFR 242.600(b)(47). E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77568 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices period to coincide with the pilot period for the Plan, including any extensions to the pilot period for the Plan, an execution will not be subject to review as an Obvious Error or Catastrophic Error pursuant to paragraph (c) or (d) of the Proposed Rule if it occurred while the underlying security was in a ‘‘Limit State’’ or ‘‘Straddle State,’’ as defined in the Plan. The Exchange, however, proposes to retain authority to review transactions on an Official’s own motion pursuant to sub-paragraph (c)(3) of the Proposed Rule and to bust or adjust transactions pursuant to the proposed Significant Market Event provision, the proposed trading halts provision, the proposed provisions with respect to erroneous prints and quotes in the underlying security, or the proposed provision related to stop and stop limit orders that have been triggered by an erroneous execution. The Exchange believes that these safeguards will provide the Exchange with the flexibility to act when necessary and appropriate to nullify or adjust a transaction, while also providing market participants with certainty that, under normal circumstances, the trades they affect with quotes and/or orders having limit prices will stand irrespective of subsequent moves in the underlying security. During a Limit or Straddle State, options prices may deviate substantially from those available immediately prior to or following such States. Thus, determining a Theoretical Price in such situations would often be very subjective, creating unnecessary uncertainty and confusion for investors. Because of this uncertainty, the Exchange is proposing to amend Rule 20.6 to provide that the Exchange will not review transactions as Obvious Errors or Catastrophic Errors when the underlying security is in a Limit or Straddle State. The Exchange notes that there are additional protections in place outside of the Obvious and Catastrophic Error Rule that will continue to safeguard customers. First, the Exchange rejects all un-priced options orders received by the Exchange (i.e., Market Orders) during a Limit or Straddle State for the underlying security. Second, SEC Rule 15c3–5 requires that, ‘‘financial risk management controls and supervisory procedures must be reasonably designed to prevent the entry of orders that exceed appropriate pre-set credit or capital thresholds, or that appear to be erroneous.’’ 14 Third, the Exchange has 14 See Securities and Exchange Act Release No. 63241 (November 3, 2010), 75 FR 69791 (November 15, 2010) (File No. S7–03–10). VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 price checks applicable to limit orders that reject limit orders that are priced sufficiently far through the national best bid or national best offer (‘‘NBBO’’) that it seems likely an error occurred. The rejection of Market Orders, the requirements placed upon broker dealers to adopt controls to prevent the entry of orders that appear to be erroneous, and Exchange functionality that filters out orders that appear to be erroneous, will all serve to sharply reduce the incidence of erroneous transactions. The Exchange represents that it will conduct its own analysis concerning the elimination of the Obvious Error and Catastrophic Error provisions during Limit and Straddle States and agrees to provide the Commission with relevant data to assess the impact of this proposed rule change. As part of its analysis, the Exchange will evaluate (1) the options market quality during Limit and Straddle States, (2) assess the character of incoming order flow and transactions during Limit and Straddle States, and (3) review any complaints from Members and their customers concerning executions during Limit and Straddle States. The Exchange also agrees to provide to the Commission data requested to evaluate the impact of the inapplicability of the Obvious Error and Catastrophic Error provisions, including data relevant to assessing the various analyses noted above. In connection with this proposal, the Exchange will provide to the Commission and the public a dataset containing the data for each Straddle State and Limit State in NMS Stocks underlying options traded on the Exchange beginning in the month during which the proposal is approved, limited to those option classes that have at least one (1) trade on the Exchange during a Straddle State or Limit State. For each of those option classes affected, each data record will contain the following information: • Stock symbol, option symbol, time at the start of the Straddle or Limit State, an indicator for whether it is a Straddle or Limit State. • For activity on the Exchange: Æ executed volume, time-weighted quoted bid-ask spread, time-weighted average quoted depth at the bid, timeweighted average quoted depth at the offer; Æ high execution price, low execution price; Æ number of trades for which a request for review for error was received during Straddle and Limit States; Æ an indicator variable for whether those options outlined above have a price change exceeding 30% during the PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 underlying stock’s Limit or Straddle State compared to the last available option price as reported by OPRA before the start of the Limit or Straddle State (1 if observe 30% and 0 otherwise). Another indicator variable for whether the option price within five minutes of the underlying stock leaving the Limit or Straddle state (or halt if applicable) is 30% away from the price before the start of the Limit or Straddle State. In addition, the Exchange shall provide to the Commission assessments relating to the impact of the operation of the Obvious Error rules during Limit and Straddle States as follows: (1) Evaluate the statistical and economic impact of Limit and Straddle States on liquidity and market quality in the options markets; and (2) Assess whether the lack of Obvious Error rules in effect during the Straddle and Limit States are problematic. The timing of this submission would coordinate with Participants’ proposed time frame to submit to the Commission assessments as required under Appendix B of the Plan. No Adjustments to a Worse Price Finally, the Exchange proposes to include Interpretation and Policy .02 to the Proposed Rule, which would make clear that to the extent the provisions of the proposed Rule would result in the Exchange applying an adjustment of an erroneous sell transaction to a price lower than the execution price or an erroneous buy transaction to a price higher than the execution price, the Exchange will not adjust or nullify the transaction, but rather, the execution price will stand. 2. Statutory Basis The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of section 6(b) of the Act.15 Specifically, the proposal is consistent with section 6(b)(5) of the Act 16 because it would promote just and equitable principles of trade, remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and, in general, protect investors and the public interest. As described above, the Exchange and other options exchanges are seeking to adopt harmonized rules related to the adjustment and nullification of erroneous options transactions. The 15 15 16 15 E:\FR\FM\24DEN1.SGM U.S.C. 78f(b). U.S.C. 78f(b)(5). 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices Exchange believes that the Proposed Rule will provide greater transparency and clarity with respect to the adjustment and nullification of erroneous options transactions. Particularly, the proposed changes seek to achieve consistent results for participants across U.S. options exchanges while maintaining a fair and orderly market, protecting investors and protecting the public interest. Based on the foregoing, the Exchange believes that the proposal is consistent with section 6(b)(5) of the Act 17 in that the Proposed Rule will foster cooperation and coordination with persons engaged in regulating and facilitating transactions. The Exchange believes the various provisions allowing or dictating adjustment rather than nullification of a trade are necessary given the benefits of adjusting a trade price rather than nullifying the trade completely. Because options trades are used to hedge, or are hedged by, transactions in other markets, including securities and futures, many Members, and their customers, would rather adjust prices of executions rather than nullify the transactions and, thus, lose a hedge altogether. As such, the Exchange believes it is in the best interest of investors to allow for price adjustments as well as nullifications. The Exchange further discusses specific aspects of the Proposed Rule below. The Exchange does not believe that the proposal is unfairly discriminatory, even though it differentiates in many places between Customers and nonCustomers. The rules of the options exchanges, including the Exchange’s existing Obvious Error provision, often treat Customers differently, often affording them preferential treatment. This treatment is appropriate in light of the fact that Customers are not necessarily immersed in the day-to-day trading of the markets, are less likely to be watching trading activity in a particular option throughout the day, and may have limited funds in their trading accounts. At the same time, the Exchange reiterates that in the U.S. options markets generally there is significant retail customer participation that occurs directly on (and only on) options exchanges such as the Exchange. Accordingly, differentiating among market participants with respect to the adjustment and nullification of erroneous options transactions is not unfairly discriminatory because it is reasonable and fair to provide Customers with additional protections as compared to non-Customers. 17 15 U.S.C. 78f(b)(5). VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 The Exchange believes that its proposal with respect to the allowance of mutual agreed upon adjustments or nullifications is appropriate and consistent with the Act, as such proposal removes impediments to and perfects the mechanism of a free and open market and a national market system, allowing participants to mutually agree to correct an erroneous transactions without the Exchange mandating the outcome. The Exchange also believes that its proposal with respect to mutual adjustments is consistent with the Act because it is designed to prevent fraudulent and manipulative acts and practices by explicitly stating that it is considered conduct inconsistent with just and equitable principles of trade for any Member to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder. The Exchange believes its proposal to provide within the Proposed Rule definitions of Customer, erroneous sell transaction and erroneous buy transaction, and Official is consistent with section 6(b)(5) of the Act because such terms will provide more certainty to market participants as to the meaning of the Proposed Rule and reduce the possibility that a party can intentionally submit an order hoping for the market to move in their favor in reliance on the Rule as a safety mechanism, thereby promoting just and fair principles of trade. Similarly, the Exchange believes that proposed Interpretation and Policy .02 is consistent with the Act as it would make clear that the Exchange will not adjust or nullify a transaction, but rather, the execution price will stand when the applicable adjustment criteria would actually adjust the price of the transaction to a worse price (i.e., higher for an erroneous buy or lower for an erroneous sell order). As set forth below, the Exchange believes it is consistent with section 6(b)(5) of the Act for the Exchange to determine Theoretical Price when the NBBO cannot reasonably be relied upon because the alternative could result in transactions that cannot be adjusted or nullified even when they are otherwise clearly at a price that is significantly away from the appropriate market for the option. Similarly, reliance on an NBBO that is not reliable could result in adjustment to prices that are still significantly away from the appropriate market for the option. The Exchange believes that its proposal with respect to determining Theoretical Price is consistent with the Act in that it has retained the standard of the current rule, which is to rely on PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 77569 the NBBO to determine Theoretical Price if such NBBO can reasonably be relied upon. Because, however, there is not always an NBBO that can or should be used in order to administer the rule, the Exchange has proposed various provisions that provide the Exchange with the authority to determine a Theoretical Price. The Exchange believes that the Proposed Rule is transparent with respect to the circumstances under which the Exchange will determine Theoretical Price, and has sought to limit such circumstances as much as possible. The Exchange notes that Exchange personnel currently are required to determine Theoretical Price in certain circumstances. While the Exchange continues to pursue alternative solutions that might further enhance the objectivity and consistency of determining Theoretical Price, the Exchange believes that the discretion currently afforded to Exchange Officials is appropriate in the absence of a reliable NBBO that can be used to set the Theoretical Price. With respect to the specific proposed provisions for determining Theoretical Price for transactions that occur as part of the Exchange’s Opening Process and in situations where there is a wide quote, the Exchange believes both provisions are consistent with the Act because they provide objective criteria that will determine Theoretical Price with limited exceptions for situations where the Exchange does not believe the NBBO is a reasonable benchmark or there is no NBBO. The Exchange notes in particular with respect to the wide quote provision that the Proposed Rule will result in the Exchange determining Theoretical Price less frequently than it would pursuant to wide quote provisions that have previously been approved. The Exchange believes that it is appropriate and consistent with the Act to afford protections to market participants by not relying on the NBBO to determine Theoretical Price when the quote is extremely wide but had been, in the prior 10 seconds, at much more reasonable width. The Exchange also believes it is appropriate and consistent with the Act to use the NBBO to determine Theoretical Price when the quote has been wider than the applicable amount for more than 10 seconds, as the Exchange does not believe it is necessary to apply any other criteria in such a circumstance. The Exchange believes that market participants can easily use or adopt safeguards to prevent errors when such market conditions exist. When entering an order into a market with a E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77570 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices persistently wide quote, the Exchange does not believe that the entering party should reasonably expect anything other than the quoted price of an option. The Exchange believes that its proposal to adopt clear but disparate standards with respect to the deadline for submitting a request for review of Customer and non-Customer transactions is consistent with the Act, particularly in that it creates a greater level of protection for Customers. As noted above, the Exchange believes that this is appropriate and not unfairly discriminatory in light of the fact that Customers are not necessarily immersed in the day-to-day trading of the markets and are less likely to be watching trading activity in a particular option throughout the day. Thus, Members representing Customer orders reasonably may need additional time to submit a request for review. The Exchange also believes that its proposal to provide additional time for submission of requests for review of linkage trades is reasonable and consistent with the protection of investors and the public interest due to the time that it might take an options exchange or third-party routing broker to file a request for review with the Exchange if the initial notification of an error is received by the originating options exchange near the end of such options exchange’s filing deadline. Without this additional time, there could be disparate results based purely on the existence of intermediaries and an interconnected market structure. In relation to the aspect of the proposal giving Officials the ability to review transactions for obvious errors on their own motion, the Exchange notes that an Official can adjust or nullify a transaction under the authority granted by this provision only if the transaction meets the specific and objective criteria for an Obvious Error under the Proposed Rule. As noted above, this is designed to give an Official the ability to provide parties relief in those situations where they have failed to report an apparent error within the established notification period. However, the Exchange will only grant relief if the transaction meets the requirements for an Obvious Error as described in the Proposed Rule. The Exchange believes that its proposal to adjust non-Customer transactions and to nullify Customer transactions that qualify as Obvious Errors is appropriate for reasons consistent with those described above. In particular, Customers are not necessarily immersed in the day-to-day trading of the markets, are less likely to be watching trading activity in a VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 particular option throughout the day, and may have limited funds in their trading accounts. The Exchange acknowledges that the proposal contains some uncertainty regarding whether a trade will be adjusted or nullified, depending on whether one of the parties is a Customer, because a party may not know whether the other party to a transaction was a Customer at the time of entering into the transaction. However, the Exchange believes that the proposal nevertheless promotes just and equitable principles of trade and protects investors as well as the public interest because it eliminates the possibility that a Customer’s order will be adjusted to a significantly different price. As noted above, the Exchange believes it is consistent with the Act to afford Customers greater protections under the Proposed Rule than are afforded to non-Customers. Thus, the Exchange believes that its proposal is consistent with the Act in that it protects investors and the public interest by providing additional protections to those that are less informed and potentially less able to afford an adjustment of a transaction that was executed in error. Customers are also less likely to have engaged in significant hedging or other trading activity based on earlier transactions, and thus, are less in need of maintaining a position at an adjusted price than nonCustomers. If any Member submits requests to the Exchange for review of transactions pursuant to the Proposed Rule, and in aggregate that Member has 200 or more Customer transactions under review concurrently and the orders resulting in such transactions were submitted during the course of 2 minutes or less, the Exchange believes it is appropriate for the Exchange apply the nonCustomer adjustment criteria described above to such transactions. The Exchange believes that the proposed aggregation is reasonable as it is representative of an extremely large number of orders submitted to the Exchange over a relatively short period of time that are, in turn, possibly erroneous (and within a time frame significantly less than an entire day), and thus is most likely to occur because of a systems issue experienced by an Options Member representing Customer orders or a systems issue coupled with the erroneous marking of orders. The Exchange does not believe it is possible at a level of 200 Customer orders over a 2 minute period that are under review at one time that multiple, separate Customers were responsible for the errors in the ordinary course of trading. PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 In the event of a large-scale issue caused by an Options Member that has submitted orders over a 2 minute period marked as Customer that resulted in more than 200 transactions under review, the Exchange does not believe it is appropriate to nullify all such transactions because of the negative impact that nullification could have on the market participants on the contraside of such transactions, who might have engaged in hedging and trading activity following such transactions. In order for a participant to have more than 200 transactions under review concurrently when the orders triggering such transactions were received in 2 minutes or less, the Exchange believes that a market participant will have far exceeded the normal behavior of customers deserving protected status. While the Exchange continues to believe that it is appropriate to nullify transactions in such a circumstance if both participants to a transaction are Customers, the Exchange does not believe it is appropriate to place the overall risk of a significant number of trade breaks on non-Customers that in the normal course of business may have engaged in additional hedging activity or trading activity based on such transactions. Thus, the Exchange believes it is necessary and appropriate to protect non-Customers in such a circumstance by applying the nonCustomer adjustment criteria, and thus adjusting transactions as set forth above, in the event a Member has more than 200 transactions under review concurrently. In summary, due to the extreme level at which the proposal is set, the Exchange believes that the proposal is consistent with section 6(b)(5) of the Act in that it promotes just and equitable principles of trade by encouraging market participants to retain appropriate controls over their systems to avoid submitting a large number of erroneous orders in a short period of time. Similarly, the Exchange believes that the proposed Size Adjustment Modifier, which would increase the adjustment amount for non-Customer transactions, is appropriate because it attempts to account for the additional risk that the parties to the trade undertake for transactions that are larger in scope. The Exchange believes that the Size Adjustment Modifier creates additional incentives to prevent more impactful Obvious Errors and it lessens the impact on the contra-party to an adjusted trade. The Exchange notes that these contraparties may have preferred to only trade the size involved in the transaction at the price at which such trade occurred, E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices and in trading larger size has committed a greater level of capital and bears a larger hedge risk. The Exchange similarly believes that its Proposed Rule with respect to Catastrophic Errors is consistent with the Act as it affords additional time for market participants to file for review of erroneous transactions that were further away from the Theoretical Price. At the same time, the Exchange believes that the Proposed Rule is consistent with the Act in that it generally would adjust transactions, including Customer transactions, because this will protect against hedge risk, particularly for transactions that may have occurred several hours earlier and thus, which all parties to the transaction might presume are protected from further modification. Similarly, by providing larger adjustment amounts away from Theoretical Price than are set forth under the Obvious Error provision, the Catastrophic Error provision also takes into account the possibility that the party that was advantaged by the erroneous transaction has already taken actions based on the assumption that the transaction would stand. The Exchange believes it is reasonable to specifically protect Customers from adjustments through their limit prices for the reasons stated above, including that Customers are less likely to be watching trading throughout the day and that they may have less capital to afford an adjustment price. The Exchange believes that the proposal provides a fair process that will ensure that Customers are not forced to accept a trade that was executed in violation of their limit order price. In contrast, market professionals are more likely to have engaged in hedging or other trading activity based on earlier trading activity, and thus, are more likely to be willing to accept an adjustment rather than a nullification to preserve their positions even if such adjustment is to a price through their limit price. The Exchange believes that proposed rule change to adopt the Significant Market Event provision is consistent with section 6(b)(5) of the Act in that it will foster cooperation and coordination with persons engaged in regulating the options markets. In particular, the Exchange believes it is important for options exchanges to coordinate when there is a widespread and significant event, as commonly, multiple options exchanges are impacted in such an event. Further, while the Exchange recognizes that the Proposed Rule will not guarantee a consistent result for all market participants on every market, the Exchange does believe that it will assist in that outcome. For instance, if options VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 exchanges are able to agree as to the time from which Theoretical Price should be determined and the period of time that should be reviewed, the likely disparity between the Theoretical Prices used by such exchanges should be very slight and, in turn, with otherwise consistent rules, the results should be similar. The Exchange also believes that the Proposed Rule is consistent with the Act in that it generally would adjust transactions, including Customer transactions, because this will protect against hedge risk, particularly for liquidity providers that might have been quoting in thousands or tens of thousands of different series and might have affected executions throughout such quoted series. The Exchange believes that when weighing the competing interests between preferring a nullification for a Customer transaction and an adjustment for a transaction of a market professional, while nullification is appropriate in a typical one-off situation that it is necessary to protect liquidity providers in a widespread market event because, presumably, they will be the most affected by such an event (in contrast to a Customer who, by virtue of their status as such, likely would not have more than a small number of affected transactions). The Exchange believes that the protection of liquidity providers by favoring adjustments in the context of Significant Market Events can also benefit Customers indirectly by better enabling liquidity providers, which provides a cumulative benefit to the market. Also, as stated above with respect to Catastrophic Errors, the Exchange believes it is reasonable to specifically protect Customers from adjustments through their limit prices for the reasons stated above, including that Customers are less likely to be watching trading throughout the day and that they may have less capital to afford an adjustment price. The Exchange believes that the proposal provides a fair process that will ensure that Customers are not forced to accept a trade that was executed in violation of their limit order price. In contrast, market professionals are more likely to have engaged in hedging or other trading activity based on earlier trading activity, and thus, are more likely to be willing to accept an adjustment rather than a nullification to preserve their positions even if such adjustment is to a price through their limit price. In addition, the Exchange believes it is important to have the ability to nullify some or all transactions arising out of a Significant Market Event in the event timely adjustment is not feasible due to PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 77571 the extraordinary nature of the situation. In particular, although the Exchange has worked to limit the circumstances in which it has to determine Theoretical Price, in a widespread event it is possible that hundreds if not thousands of series would require an Exchange determination of Theoretical Price. In turn, if there are hundreds or thousands of trades in such series, it may not be practicable for the Exchange to determine the adjustment levels for all non-Customer transactions in a timely fashion, and in turn, it would be in the public interest to instead more promptly deliver a simple, consistent result of nullification. The Exchange believes that proposed rule change related to review, nullification and/or adjustment of erroneous transactions during a trading halt (including the proposed modification to Rule 20.3), an erroneous print in the underlying security, an erroneous quote in the underlying security, or an erroneous transaction in the option with respect to stop and stop limit orders is likewise consistent with section 6(b)(5) of the Act because the proposal provides for the adjustment or nullification of trades executed at erroneous prices through no fault on the part of the trading participants. Allowing for Exchange review in such situations will promote just and fair principles of trade by protecting investors from harm that is not of their own making. Specifically with respect to the proposed provisions governing erroneous prints and quotes in the underlying security, the Exchange notes that market participants on the Exchange base the value of their quotes and orders on the price of the underlying security. The provisions regarding errors in prints and quotes in the underlying security cover instances where the information market participants use to price options is erroneous through no fault of their own. In these instances, market participants have little, if any, chance of pricing options accurately. Thus, these provisions are designed to provide relief to market participants harmed by such errors in the prints or quotes of the underlying security. The Exchange believes that the proposed provision related to Linkage Trades is consistent with the Act because it adds additional transparency to the Proposed Rule and makes clear that when a Linkage Trade is adjusted or nullified by another options exchange, the Exchange will take necessary actions to complete the nullification or adjustment of the Linkage Trade. E:\FR\FM\24DEN1.SGM 24DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77572 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices The Exchange believes that retaining the same appeals process as the Exchange maintains under the Current Rule is consistent with the Act because such process provides Options Members with due process in connection with decisions made by Exchange Officials under the Proposed Rule. The Exchange believes that this process provides fair representation of Options Members by ensuring diversity amongst the members of any Obvious Error Review Panel, which is consistent with sections 6(b)(3) and 6(b)(7) of the Act. The Exchange also believes that the proposed appeals process is appropriate with respect to financial penalties for appeals that result in a decision of the Exchange being upheld because it discourages frivolous appeals, thereby reducing the possibility of overusing Exchange resources that can instead be focused on other, more productive activities. The fees with respect to such financial penalties are the same as under the Current Rule, and are equitable and not unfairly discriminatory because they will be applied uniformly to all Options Members and are designed to reduce administrative burden on the Exchange as well as market participants that volunteer to participate on Obvious Error Review Panels. With regard to the portion of the Exchange’s proposal related to the applicability of the Obvious Error Rule when the underlying security is in a Limit or Straddle State, the Exchange believes that the proposed rule change is consistent with section 6(b)(5) of the Act because it will provide certainty about how errors involving options orders and trades will be handled during periods of extraordinary volatility in the underlying security. Further, the Exchange believes that it is necessary and appropriate in the interest of promoting fair and orderly markets to exclude from Rule 20.6 those transactions executed during a Limit or Straddle State. The Exchange believes the application of the Proposed Rule without the proposed provision would be impracticable given the lack of reliable NBBO in the options market during Limit and Straddle States, and that the resulting actions (i.e., nullified trades or adjusted prices) may not be appropriate given market conditions. The Proposed Rule change would ensure that limit orders that are filled during a Limit State or Straddle State would have certainty of execution in a manner that promotes just and equitable principles of trade, removes impediments to, and perfects the mechanism of a free and open market and a national market system. VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 Moreover, given the fact that options prices during brief Limit or Straddle States may deviate substantially from those available shortly following the Limit or Straddle State, the Exchange believes giving market participants time to re-evaluate a transaction would create an unreasonable adverse selection opportunity that would discourage participants from providing liquidity during Limit or Straddle States. In this respect, the Exchange notes that only those orders with a limit price will be executed during a Limit or Straddle State. Therefore, on balance, the Exchange believes that removing the potential inequity of nullifying or adjusting executions occurring during Limit or Straddle States outweighs any potential benefits from applying certain provisions during such unusual market conditions. Additionally, as discussed above, there are additional pre-trade protections in place outside of the Obvious and Catastrophic Error Rule that will continue to safeguard customers. The Exchange notes that under certain limited circumstances the Proposed Rule will permit the Exchange to review transactions in options that overlay a security that is in a Limit or Straddle State. Specifically, an Official will have authority to review a transaction on his or her own motion in the interest of maintaining a fair and orderly market and for the protection of investors. Furthermore, the Exchange will have the authority to adjust or nullify transactions in the event of a Significant Market Event, a trading halt in the affected option, an erroneous print or quote in the underlying security, or with respect to stop and stop limit orders that have been triggered based on erroneous trades. The Exchange believes that the safeguards described above will protect market participants and will provide the Exchange with the flexibility to act when necessary and appropriate to nullify or adjust a transaction, while also providing market participants with certainty that, under normal circumstances, the trades they effect with quotes and/or orders having limit prices will stand irrespective of subsequent moves in the underlying security. The right to review those transactions that occur during a Limit or Straddle State would allow the Exchange to account for unforeseen circumstances that result in Obvious or Catastrophic Errors for which a nullification or adjustment may be necessary in the interest of maintaining a fair and orderly market and for the protection of investors. Similarly, the ability to nullify or adjust transactions PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 that occur during a Significant Market Event or trading halt, erroneous print or quote in the underlying security, or erroneous trade in the option (i.e., stop and stop limit orders) may also be necessary in the interest of maintaining a fair and orderly market and for the protection of investors. Furthermore, the Exchange will administer this provision in a manner that is consistent with the principles of the Act and will create and maintain records relating to the use of the authority to act on its own motion during a Limit or Straddle State or any adjustments or trade breaks based on other proposed provisions under the Rule. B. Self-Regulatory Organization’s Statement on Burden on Competition BATS believes the entire proposal is consistent with section 6(b)(8) of the Act 18 in that it does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act as explained below. Importantly, the Exchange believes the proposal will not impose a burden on intermarket competition but will rather alleviate any burden on competition because it is the result of a collaborative effort by all options exchanges to harmonize and improve the process related to the adjustment and nullification of erroneous options transactions. The Exchange does not believe that the rules applicable to such process is an area where options exchanges should compete, but rather, that all options exchanges should have consistent rules to the extent possible. Particularly where a market participant trades on several different exchanges and an erroneous trade may occur on multiple markets nearly simultaneously, the Exchange believes that a participant should have a consistent experience with respect to the nullification or adjustment of transactions. The Exchange understands that all other options exchanges intend to file proposals that are substantially similar to this proposal. The Exchange does not believe that the proposed rule change imposes a burden on intramarket competition because the provisions apply to all market participants equally within each participant category (i.e., Customers and non-Customers). With respect to competition between Customer and non-Customer market participants, the Exchange believes that the Proposed Rule acknowledges competing concerns and tries to strike the appropriate balance between such concerns. For 18 15 E:\FR\FM\24DEN1.SGM U.S.C. 78f(b)(8). 24DEN1 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Notices instance, as noted above, the Exchange believes that protection of Customers is important due to their direct participation in the options markets as well as the fact that they are not, by definition, market professionals. At the same time, the Exchange believes due to the quote-driven nature of the options markets, the importance of liquidity provision in such markets and the risk that liquidity providers bear when quoting a large breadth of products that are derivative of underlying securities, that the protection of liquidity providers and the practice of adjusting transactions rather than nullifying them is of critical importance. As described above, the Exchange will apply specific and objective criteria to determine whether an erroneous transaction has occurred and, if so, how to adjust or nullify a transaction. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or within such longer period up to 90 days after publication (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve or disapprove the proposed rule change, or (B) institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments mstockstill on DSK4VPTVN1PROD with NOTICES Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–BATS–2014–067. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–BATS– 2014–067 and should be submitted on or before January 14, 2015.19 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2014–30127 Filed 12–23–14; 8:45 am] BILLING CODE 8011–01–P VerDate Sep<11>2014 16:34 Dec 23, 2014 Jkt 235001 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–73883; File No. SR–NYSE– 2014–66] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 342 To Remove the Three Years’ Experience Requirement for Supervisory Personnel and To Add Supplementary Material to Rule 3110 Stating That Supervisors Must Reasonably Discharge Their Supervisory Duties and Obligations December 18, 2014. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on December 8, 2014, New York Stock Exchange LLC (‘‘NYSE’’ or ‘‘Exchange’’) 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 substantially prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. The Exchange has designated the proposed rule change as constituting a ‘‘non-controversial’’ rule change under Exchange Act Rule 19b–4(f)(6), which renders the proposal effective upon receipt of this filing by the Commission. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend NYSE Rule 342 to remove the three years’ experience requirement for supervisory personnel and to add supplementary material to NYSE Rule 3110 stating that supervisors must reasonably discharge their supervisory duties and obligations. The text of the proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BATS–2014–067 on the subject line. 77573 1 15 19 17 PO 00000 CFR 200.30–3(a)(12). Frm 00133 Fmt 4703 Sfmt 4703 2 17 E:\FR\FM\24DEN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 24DEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
[Notices]
[Pages 77557-77573]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30127]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73884; File No. SR-BATS-2014-067]


Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of 
Filing of a Proposed Rule Change, as Modified by Amendment No. 1, to 
Rule 20.6 of BATS Exchange, Inc.

December 18, 2014.
    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 December 4, 2014, BATS Exchange, Inc. (the ``Exchange'' or 
``BATS'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the Exchange. On December 
17, 2014, the Exchange filed Amendment No. 1 to the proposed rule 
change, which amended and replaced the proposed rule change in its 
entirety. The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange filed a proposal to replace current Rule 20.6 
(``Current Rule''), entitled ``Obvious Error,'' with new Rule 20.6 
(``Proposed Rule''), entitled ``Nullification and Adjustment of Options 
Transactions including Obvious Errors.'' Rule 20.6 relates to the 
adjustment and nullification of transactions that occur on the 
Exchange's equity options platform (``BATS Options'').
    The text of the proposed rule change is available at the Exchange's 
Web site at https://www.batstrading.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 Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant parts of such 
statements.

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

1. Purpose
Background
    For several months the Exchange has been working with other options 
exchanges to identify ways to improve the process related to the 
adjustment and nullification of erroneous options transactions. The 
goal of the process that the options exchanges have undertaken is to 
adopt harmonized rules related to the adjustment and nullification of 
erroneous options transactions as well as a specific provision related 
to coordination in connection with large-scale events involving 
erroneous options transactions. As described below, the Exchange 
believes that the changes the options exchanges and the Exchange have 
agreed to propose will provide transparency and finality with respect 
to the adjustment and nullification of erroneous options transactions. 
Particularly, the proposed changes seek to achieve consistent results 
for participants across U.S. options exchanges while maintaining a fair 
and orderly market, protecting investors and protecting the public 
interest.
    The Proposed Rule is the culmination of this coordinated effort and 
reflects discussions by the options exchanges to universally adopt: (1) 
Certain provisions already in place on one or more options exchanges; 
and (2) new provisions that the options exchanges collectively believe 
will improve the handling of erroneous options transactions. Thus, 
although the Proposed Rule is in many ways similar to and based on the 
Exchange's Current Rule, the Exchange is adopting various provisions to

[[Page 77558]]

conform with existing rules of one or more options exchanges and also 
to adopt rules that are not currently in place on any options exchange. 
As noted above, in order to adopt a rule that is similar in most 
material respects to the rules adopted by other options exchanges, the 
Exchange proposes to delete the Current Rule in its entirety and to 
replace it with the Proposed Rule.
    The Exchange notes that it has proposed additional objective 
standards in the Proposed Rule as compared to the Current Rule. The 
Exchange also notes that the Proposed Rule will ensure that the 
Exchange will have the same standards as all other options exchanges. 
However, there are still areas under the Proposed Rule where subjective 
determinations need to be made by Exchange personnel with respect to 
the calculation of Theoretical Price. The Exchange notes that the 
Exchange and all other options exchanges have been working to further 
improve the review of potentially erroneous transactions as well as 
their subsequent adjustment by creating an objective and universal way 
to determine Theoretical Price in the event a reliable NBBO is not 
available. For instance, the Exchange and all other options exchanges 
may utilize an independent third party to calculate and disseminate or 
make available Theoretical Price. However, this initiative requires 
additional exchange and industry discussion as well as additional time 
for development and implementation. The Exchange will continue to work 
with other options exchanges and the options industry towards the goal 
of additional objectivity and uniformity with respect to the 
calculation of Theoretical Price.
    As additional background, the Exchange believes that the Proposed 
Rule supports an approach consistent with long-standing principles in 
the options industry under which the general policy is to adjust rather 
than nullify transactions. The Exchange acknowledges that adjustment of 
transactions is contrary to the operation of analogous rules applicable 
to the equities markets, where erroneous transactions are typically 
nullified rather than adjusted and where there is no distinction 
between the types of market participants involved in a transaction. For 
the reasons set forth below, the Exchange believes that the 
distinctions in market structure between equities and options markets 
continue to support these distinctions between the rules for handling 
obvious errors in the equities and options markets. The Exchange also 
believes that the Proposed Rule properly balances several competing 
concerns based on the structure of the options markets.
    Various general structural differences between the options and 
equities markets point toward the need for a different balancing of 
risks for options market participants and are reflected in the Proposed 
Rule. Option pricing is formulaic and is tied to the price of the 
underlying stock, the volatility of the underlying security and other 
factors. Because options market participants can generally create new 
open interest in response to trading demand, as new open interest is 
created, correlated trades in the underlying or related series are 
generally also executed to hedge a market participant's risk. This 
pairing of open interest with hedging interest differentiates the 
options market specifically (and the derivatives markets broadly) from 
the cash equities markets. In turn, the Exchange believes that the 
hedging transactions engaged in by market participants necessitates 
protection of transactions through adjustments rather than 
nullifications when possible and otherwise appropriate.
    The options markets are also quote driven markets dependent on 
liquidity providers to an even greater extent than equities markets. In 
contrast to the approximately 7,000 different securities traded in the 
U.S. equities markets each day, there are more than 500,000 unique, 
regularly quoted option series. Given this breadth in options series 
the options markets are more dependent on liquidity providers than 
equities markets; such liquidity is provided most commonly by 
registered market makers but also by other professional traders. With 
the number of instruments in which registered market makers must quote 
and the risk attendant with quoting so many products simultaneously, 
the Exchange believes that those liquidity providers should be afforded 
a greater level of protection. In particular, the Exchange believes 
that liquidity providers should be allowed protection of their trades 
given the fact that they typically engage in hedging activity to 
protect them from significant financial risk to encourage continued 
liquidity provision and maintenance of the quote-driven options 
markets.
    In addition to the factors described above, there are other 
fundamental differences between options and equities markets which lend 
themselves to different treatment of different classes of participants 
that are reflected in the Proposed Rule. For example, there is no trade 
reporting facility in the options markets. Thus, all transactions must 
occur on an options exchange. This leads to significantly greater 
retail customer participation directly on exchanges than in the 
equities markets, where a significant amount of retail customer 
participation never reaches the Exchange but is instead executed in 
off-exchange venues such as alternative trading systems, broker-dealer 
market making desks and internalizers. In turn, because of such direct 
retail customer participation, the exchanges have taken steps to afford 
those retail customers--generally Priority Customers--more favorable 
treatment in some circumstances.
Definitions
    The Exchange proposes to adopt various definitions that will be 
used in the Proposed Rule, as described below.
    First, the Exchange proposes to adopt a definition of ``Customer,'' 
to make clear that this term would not include any broker-dealer or 
Professional Customer.\3\ Although other portions of the Exchange's 
rules address the capacity of market participants, including customers, 
the proposed definition is consistent with such rules and the Exchange 
believes it is important for all options exchanges to have the same 
definition of Customer in the context of nullifying and adjusting 
trades in order to have harmonized rules. As set forth in detail below, 
orders on behalf of a Customer are in many cases treated differently 
than non-Customer orders in light of the fact that Customers are not 
necessarily immersed in the day-to-day trading of the markets, are less 
likely to be watching trading activity in a particular option 
throughout the day, and may have limited funds in their trading 
accounts.
---------------------------------------------------------------------------

    \3\ A ``Professional'' is any person or entity that (A) is not a 
broker or dealer in securities; and (B) places more than 390 orders 
in listed options per day on average during a calendar month for its 
own beneficial account(s). See Rule 16.1(a)(45).
---------------------------------------------------------------------------

    Second, the Exchange proposes to adopt definitions for both an 
``erroneous sell transaction'' and an ``erroneous buy transaction.'' As 
proposed, an erroneous sell transaction is one in which the price 
received by the person selling the option is erroneously low, and an 
erroneous buy transaction is one in which the price paid by the person 
purchasing the option is erroneously high. This provision helps to 
reduce the possibility that a party can intentionally submit an order 
hoping for the market to move in their favor while knowing that the 
transaction will be nullified or adjusted if the market does not. For 
instance, when a market participant who is buying options in a 
particular series sees an aggressively priced sell order posted on the 
Exchange, and the

[[Page 77559]]

buyer believes that the price of the options is such that it might 
qualify for obvious error, the option buyer can trade with the 
aggressively priced order, then wait to see which direction the market 
moves. If the market moves in their direction, the buyer keeps the 
trade and if it moves against them, the buyer calls the Exchange hoping 
to get the trade adjusted or busted.
    Third, the Exchange proposes to adopt a definition of ``Official,'' 
which would mean an Officer of the Exchange or such other employee 
designee of the Exchange that is trained in the application of the 
Proposed Rule. The Exchange notes that this definition is consistent 
with the definition of Official currently contained in the Exchange's 
Current Rule.
    Fourth, the Exchange proposes to adopt a new term, a ``Size 
Adjustment Modifier,'' which would apply to individual transactions and 
would modify the applicable adjustment for orders under certain 
circumstances, as discussed in further detail below. As proposed, the 
Size Adjustment Modifier will be applied to individual orders as 
follows:

------------------------------------------------------------------------
  Number of contracts per execution        Adjustment--TP plus/minus
------------------------------------------------------------------------
1-50................................  N/A.
51-250..............................  2 times adjustment amount.
251-1000............................  2.5 times adjustment amount.
1001 or more........................  3 times adjustment amount.
------------------------------------------------------------------------

    The Size Adjustment Modifier attempts to account for the additional 
risk that the parties to the trade undertake for transactions that are 
larger in scope. The Exchange believes that the Size Adjustment 
Modifier creates additional incentives to prevent more impactful 
Obvious Errors and it lessens the impact on the contra-party to an 
adjusted trade. The Exchange notes that these contra-parties may have 
preferred to only trade the size involved in the transaction at the 
price at which such trade occurred, and in trading larger size has 
committed a greater level of capital and bears a larger hedge risk.
    When setting the proposed size adjustment modifier thresholds the 
Exchange has tried to correlate the size breakpoints with typical small 
and larger ``block'' execution sizes of underlying stock. For instance, 
SEC Rule 10b-18(a)(5)(ii) defines a ``block'' as a quantity of stock 
that is at least 5,000 shares and a purchase price of at least $50,000, 
among others.\4\ Similarly, NYSE Rule 72 defines a ``block'' as an 
order to buy or sell ``at least 10,000 shares or a quantity of stock 
having a market value of $200,000 or more, whichever is less.'' Thus, 
executions of 51 to 100 option contracts, which are generally 
equivalent to executions of 5,100 and 10,000 shares of underlying 
stock, respectively, are proposed to be subject to the lowest size 
adjustment modifier. An execution of over 1,000 contracts is roughly 
equivalent to a block transaction of more than 100,000 shares of 
underlying stock, and is proposed to be subject to the highest size 
adjustment modifier. The Exchange has correlated the proposed size 
adjustment modifier thresholds to smaller and larger scale blocks 
because the Exchange believes that the execution cost associated with 
transacting in block sizes scales according to the size of the block. 
In other words, in the same way that executing a 100,000 share stock 
order will have a proportionately larger market impact and will have a 
higher overall execution cost than executing a 500, 1,000 or 5,000 
share order in the same stock, all other market factors being equal, 
executing a 1,000 option contract order will have a larger market 
impact and higher overall execution cost than executing a 5, 10 or 50 
contract option order.
---------------------------------------------------------------------------

    \4\ See 17 CFR 240.10b-18(a)(5)(ii).
---------------------------------------------------------------------------

Calculation of Theoretical Price
Theoretical Price in Normal Circumstances
    Under both the Current Rule and the Proposed Rule, when reviewing a 
transaction as potentially erroneous, the Exchange needs to first 
determine the ``Theoretical Price'' of the option, i.e., the Exchange's 
estimate of the correct market price for the option. Pursuant to the 
Proposed Rule, if the applicable option series is traded on at least 
one other options exchange, then the Theoretical Price of an option 
series is the last national best bid (``NBB'') just prior to the trade 
in question with respect to an erroneous sell transaction or the last 
national best offer (``NBO'') just prior to the trade in question with 
respect to an erroneous buy transaction unless one of the exceptions 
described below exists. Thus, the Exchange proposes that whenever the 
Exchange has a reliable NBB or NBO, as applicable, just prior to the 
transaction, then the Exchange will use this NBB or NBO as the 
Theoretical Price.
    The Exchange also proposes to specify in the Proposed Rule that 
when a single order received by the Exchange is executed at multiple 
price levels, the Theoretical Price for the execution at the initial 
price level will be the last NBB and last NBO just prior to the 
Exchange's receipt of the order, and the Theoretical Price for all 
subsequent executions at other price levels will be determined by the 
Exchange. The Exchange believes that it is necessary to retain 
discretion for the handling of an order that drills-through several 
price levels consistent with the reasons for the wide quote provision 
described below, where the Exchange too has proposed to retain 
discretion. The Exchange believes this is important, among other 
reasons, to ensure that a market participant is not intentionally 
targeting quotations that it knows are at other price levels in order 
to get an adjustment to a better price. For example, if the market in 
an option is $1.00 x $1.05 and a member sends a large erroneously 
aggressively priced buy order that will execute at multiple price 
points while driving the price from $1.05 to $2.50, the Exchange 
believes that it needs discretion in order to determine whether 
executions that occurred as the order made it through various price 
levels were erroneous or if they should be upheld. If, during the 
handling of the order, executions took place originally at $1.05 and 
then at $1.06, $1.08, $1.50, $2.00 and $2.50, these price levels were 
the result of the handling of the order in question. The Exchange would 
consider the Theoretical Price of the option to be $1.05 for the 
initial execution and would determine Theoretical Price for executions 
at all other price levels. If the market participant sending the order 
aggressively priced the order in a way that it would drill-through all 
available liquidity and buy at a price up to $2.50, then the Exchange 
does not believe that the market participants providing liquidity in 
the option on the Exchange that are on the other side of such 
transactions should be forced to accept an adjustment to a different 
price level. The Exchange believes that this situation is different 
than, for example, an order received during a momentary gap in 
liquidity.
    The Exchange also proposes to set forth in the Proposed Rule 
various provisions governing specific situations where the NBB or NBO 
is not available or may not be reliable. Specifically, the Exchange is 
proposing additional detail specifying situations in which there are no 
quotes or no valid quotes (as defined below), when the national best 
bid or offer (``NBBO'') is determined to be too wide to be reliable, 
and at the open of trading on each trading day.
No Valid Quotes
    As is true under the Current Rule, pursuant to the Proposed Rule 
the Exchange will determine the Theoretical Price if there are no 
quotes or no valid

[[Page 77560]]

quotes for comparison purposes. As proposed, quotes that are not valid 
are all quotes in the applicable option series published at a time 
where the last NBB is higher than the last NBO in such series (a 
``crossed market''), quotes published by the Exchange that were 
submitted by either party to the transaction in question, and quotes 
published by another options exchange against which the Exchange has 
declared self-help. Thus, in addition to scenarios where there are 
literally no quotes to be used as Theoretical Price, the Exchange will 
exclude quotes in certain circumstances if such quotes are not deemed 
valid. The Proposed Rule is consistent with the Exchange's application 
of the Current Rule but the descriptions of the various scenarios where 
the Exchange considers quotes to be invalid represent additional detail 
that is not included in the Current Rule.
    The Exchange notes that Exchange personnel currently are required 
to determine Theoretical Price in certain circumstances. While the 
Exchange continues to pursue alternative solutions that might further 
enhance the objectivity and consistency of determining Theoretical 
Price, the Exchange believes that the discretion currently afforded to 
Exchange Officials is appropriate in the absence of a reliable NBBO 
that can be used to set the Theoretical Price. Under the current Rule, 
Exchange personnel will generally consult and refer to data such as the 
prices of related series, especially the closest strikes in the option 
in question. Exchange personnel may also take into account the price of 
the underlying security and the volatility characteristics of the 
option as well as historical pricing of the option and/or similar 
options.
Wide Quotes
    Similarly, pursuant to the Proposed Rule the Exchange will 
determine the Theoretical Price if the bid/ask differential of the NBB 
and NBO for the affected series just prior to the erroneous transaction 
was equal to or greater than the Minimum Amount set forth below and 
there was a bid/ask differential less than the Minimum Amount during 
the 10 seconds prior to the transaction. If there was no bid/ask 
differential less than the Minimum Amount during the 10 seconds prior 
to the transaction then the Theoretical Price of an option series is 
the last NBB or NBO just prior to the transaction in question. The 
Exchange proposes to use the following chart to determine whether a 
quote is too wide to be reliable:

------------------------------------------------------------------------
               Bid price at time of trade                 Minimum amount
------------------------------------------------------------------------
Below $2.00.............................................           $0.75
$2.00 to $5.00..........................................            1.25
Above $5.00 to $10.00...................................            1.50
Above $10.00 to $20.00..................................            2.50
Above $20.00 to $50.00..................................            3.00
Above $50.00 to $100.00.................................            4.50
Above $100.00...........................................            6.00
------------------------------------------------------------------------

    The Exchange notes that the values set forth above generally 
represent a multiple of 3 times the bid/ask differential requirements 
of other options exchanges, with certain rounding applied (e.g., $1.25 
as proposed rather than $1.20).\5\ The Exchange believes that basing 
the Wide Quote table on a multiple of the permissible bid/ask 
differential rule provides a reasonable baseline for quotations that 
are indeed so wide that they cannot be considered reliable for purposes 
of determining Theoretical Price unless they have been consistently 
wide. As described above, while the Exchange will determine Theoretical 
Price when the bid/ask differential equals or exceeds the amount set 
forth in the chart above and within the previous 10 seconds there was a 
bid/ask differential smaller than such amount, if a quote has been 
persistently wide for at least 10 seconds the Exchange will use such 
quote for purposes of Theoretical Price. The Exchange believes that 
there should be a greater level of protection afforded to market 
participants that enter the market when there are liquidity gaps and 
price fluctuations. The Exchange does not believe that a similar level 
of protection is warranted when market participants choose to enter a 
market that is wide and has been consistently wide for some time. The 
Exchange notes that it has previously determined that, given the 
largely electronic nature of today's markets, as little as one second 
(or less) is a long enough time for market participants to receive, 
process and account for and respond to new market information.\6\ While 
introducing this new provision the Exchange believes it is being 
appropriately cautious by selecting a time frame that is an order of 
magnitude above and beyond what the Exchange has previously determined 
is sufficient for information dissemination. The table above bases the 
wide quote provision off of bid price in order to provide a relatively 
straightforward beginning point for the analysis.
---------------------------------------------------------------------------

    \5\ See, e.g., NYSE Arca Options Rule 6.37(b)(1).
    \6\ See, e.g., Exchange Rule 22.12, which requires certain 
orders to be exposed on BATS Options for at least one second before 
they can be executed; see also Securities Exchange Act Release No. 
66306 (February 2, 2012), 77 FR 6608 (February 8, 2012) (SR-BX-2011-
084) (order granting approval of proposed rule change to reduce the 
duration of the PIP from one second to one hundred milliseconds).
---------------------------------------------------------------------------

    As an example, assume an option is quoted $3.00 by $6.00 with 50 
contracts posted on each side of the market for an extended period of 
time. If a market participant were to enter a market order to buy 20 
contracts the Exchange believes that the buyer should have a reasonable 
expectation of paying $6.00 for the contracts which they are buying. 
This should be the case even if immediately after the purchase of those 
options, the market conditions change and the same option is then 
quoted at $3.75 by $4.25. Although the quote was wide according to the 
table above at the time immediately prior to and the time of the 
execution of the market order, it was also well established and well 
known. The Exchange believes that an execution at the then prevailing 
market price should not in and of itself constitute an erroneous trade.
Transactions at the Open
    Under the Proposed Rule, for a transaction occurring as part of the 
Opening Process \7\ the Exchange will determine the Theoretical Price 
where there is no NBB or NBO for the affected series just prior to the 
erroneous transaction or if the bid/ask differential of the NBBO just 
prior to the erroneous transaction is equal to or greater than the 
Minimum Amount set forth in the chart proposed for the wide quote 
provision described above. The Exchange believes that this discretion 
is necessary because it is consistent with other scenarios in which the 
Exchange will determine the Theoretical Price if there are no quotes or 
no valid quotes for comparison purposes, including the wide quote 
provision proposed by the Exchange as described above. If, however, 
there are valid quotes and the bid/ask differential of the NBBO is less 
than the Minimum Amount set forth in the chart proposed for the wide 
quote provision described above, then the Exchange will use the NBB or 
NBO just prior to the transaction as it would in any other normal 
review scenario.
---------------------------------------------------------------------------

    \7\ See Exchange Rule 21.7 for a description of the Exchange's 
Opening Process.
---------------------------------------------------------------------------

    As an example of an erroneous transaction for which the NBBO is 
wide at the open, assume the NBBO at the time of the opening 
transaction is $1.00 x $5.00 and the opening transaction takes place at 
$1.25. The Exchange would be responsible for determining the 
Theoretical Price because the NBBO was wider than the applicable 
minimum amount set forth in the wide quote

[[Page 77561]]

provision as described above. The Exchange believes that it is 
necessary to determine theoretical price at the open in the event of a 
wide quote at the open for the same reason that the Exchange has 
proposed to determine theoretical price during the remainder of the 
trading day pursuant to the proposed wide quote provision, namely that 
a wide quote cannot be reliably used to determine Theoretical Price 
because the Exchange does not know which of the two quotes, the NBB or 
the NBO, is closer to the real value of the option.
Obvious Errors
    The Exchange proposes to adopt numerical thresholds that would 
qualify transactions as ``Obvious Errors.'' These thresholds are 
similar to those in place under the Current Rule. As proposed, a 
transaction will qualify as an Obvious Error if the Exchange receives a 
properly submitted filing and the execution price of a transaction is 
higher or lower than the Theoretical Price for the series by an amount 
equal to at least the amount shown below:

------------------------------------------------------------------------
                    Theoretical price                     Minimum amount
------------------------------------------------------------------------
Below $2.00.............................................           $0.25
$2.00 to $5.00..........................................            0.40
Above $5.00 to $10.00...................................            0.50
Above $10.00 to $20.00..................................            0.80
Above $20.00 to $50.00..................................            1.00
Above $50.00 to $100.00.................................            1.50
Above $100.00...........................................            2.00
------------------------------------------------------------------------

Applying the Theoretical Price, as described above, to determine the 
applicable threshold and comparing the Theoretical Price to the actual 
execution price provides the Exchange with an objective methodology to 
determine whether an Obvious Error occurred. The Exchange believes that 
the proposed amounts are reasonable as they are generally consistent 
with the standards of the Current Rule and reflect a significant 
disparity from Theoretical Price. The Exchange notes that the Minimum 
Amounts in the Proposed Rule and as set forth above are identical to 
the Current Rule except for the last two categories, for options where 
the Theoretical Price is above $50.00 to $100.00 and above $100.00. The 
Exchange believes that this additional granularity is reasonable 
because given the proliferation of additional strikes that have been 
created in the past several years there are many more high-priced 
options that are trading with open interest for extended periods. The 
Exchange believes that it is appropriate to account for these high-
priced options with additional Minimum Amount levels for options with 
Theoretical Prices above $50.00.
    Under the Proposed Rule, a party that believes that it participated 
in a transaction that was the result of an Obvious Error must notify 
the Exchange's Trade Desk in the manner specified from time to time by 
the Exchange in a circular distributed to Members. The Exchange 
currently requires electronic notification through a web-based 
application but believes that maintaining flexibility in the Rule is 
important to allow for changes to the process.
    The Exchange also proposes to adopt notification timeframes that 
must be met in order for a transaction to qualify as an Obvious Error. 
Specifically, as proposed a filing must be received by the Exchange 
within thirty (30) minutes of the execution with respect to an 
execution of a Customer order and within fifteen (15) minutes of the 
execution for any other participant. The Exchange also proposes to 
provide additional time for trades that are routed through other 
options exchanges to the Exchange. Under the Proposed Rule, any other 
options exchange will have a total of forty-five (45) minutes for 
Customer orders and thirty (30) minutes for non-Customer orders, 
measured from the time of execution on the Exchange, to file with the 
Exchange for review of transactions routed to the Exchange from that 
options exchange and executed on the Exchange (``linkage trades''). 
This includes filings on behalf of another options exchange filed by a 
third-party routing broker if such third-party broker identifies the 
affected transactions as linkage trades. In order to facilitate timely 
reviews of linkage trades the Exchange will accept filings from either 
the other options exchange or, if applicable, the third-party routing 
broker that routed the applicable order(s). The additional fifteen (15) 
minutes provided with respect to linkage trades shall only apply to the 
extent the options exchange that originally received and routed the 
order to the Exchange itself received a timely filing from the entering 
participant (i.e., within 30 minutes if a Customer order or 15 minutes 
if a non-Customer order). The Exchange believes that additional time 
for filings related to Customer orders is appropriate in light of the 
fact that Customers are not necessarily immersed in the day-to-day 
trading of the markets and are less likely to be watching trading 
activity in a particular option throughout the day. The Exchange 
believes that the additional time afforded to linkage trades is 
appropriate given the interconnected nature of the markets today and 
the practical difficulty that an end user may face in getting requests 
for review filed in a timely fashion when the transaction originated at 
a different exchange than where the error took place. Without this 
additional time the Exchange believes it would be common for a market 
participant to satisfy the filing deadline at the original exchange to 
which an order was routed but that requests for review of executions 
from orders routed to other options exchanges would not qualify for 
review as potential Obvious Errors by the time filings were received by 
such other options exchanges, in turn leading to potentially disparate 
results under the applicable rules of options exchanges to which the 
orders were routed.
    Pursuant to the Proposed Rule, an Official may review a transaction 
believed to be erroneous on his/her own motion in the interest of 
maintaining a fair and orderly market and for the protection of 
investors. This proposed provision is designed to give an Official the 
ability to provide parties relief in those situations where they have 
failed to report an apparent error within the established notification 
period. A transaction reviewed pursuant to the proposed provision may 
be nullified or adjusted only if it is determined by the Official that 
the transaction is erroneous in accordance with the provisions of the 
Proposed Rule, provided that the time deadlines for filing a request 
for review described above shall not apply. The Proposed Rule would 
require the Official to act as soon as possible after becoming aware of 
the transaction; action by the Official would ordinarily be expected on 
the same day that the transaction occurred. However, because a 
transaction under review may have occurred near the close of trading or 
due to unusual circumstances, the Proposed Rule provides that the 
Official shall act no later than 8:30 a.m. Eastern Time on the next 
trading day following the date of the transaction in question.
    The Exchange also proposes to state that a party affected by a 
determination to nullify or adjust a transaction after an Official's 
review on his or her own motion may appeal such determination in 
accordance with paragraph (k), which is described below. The Proposed 
Rule would make clear that a determination by an Official not to review 
a transaction or determination not to nullify or adjust a transaction 
for which a review was conducted on an Official's own motion is not 
appealable and further that if a transaction is reviewed and a 
determination is rendered pursuant to another provision of the Proposed 
Rule, no additional relief may be granted by an Official.

[[Page 77562]]

    If it is determined that an Obvious Error has occurred based on the 
objective numeric criteria and time deadlines described above, the 
Exchange will adjust or nullify the transaction as described below and 
promptly notify both parties to the trade electronically or via 
telephone. The Exchange proposes different adjustment and nullification 
criteria for Customers and non-Customers.
    As proposed, where neither party to the transaction is a Customer, 
the execution price of the transaction will be adjusted by the Official 
pursuant to the table below.

------------------------------------------------------------------------
                                                   Buy          Sell
                                               transaction   transaction
           Theoretical price (TP)             adjustment--  adjustment--
                                                 TP plus      TP minus
------------------------------------------------------------------------
Below $3.00.................................         $0.15         $0.15
At or above $3.00...........................          0.30          0.30
------------------------------------------------------------------------

    The Exchange believes that it is appropriate to adjust to prices a 
specified amount away from Theoretical Price rather than to adjust to 
Theoretical Price because even though the Exchange has determined a 
given trade to be erroneous in nature, the parties in question should 
have had some expectation of execution at the price or prices 
submitted. Also, it is common that by the time it is determined that an 
obvious error has occurred additional hedging and trading activity has 
already occurred based on the executions that previously happened. The 
Exchange is concerned that an adjustment to Theoretical Price in all 
cases would not appropriately incentivize market participants to 
maintain appropriate controls to avoid potential errors.
    Further, as proposed any non-Customer Obvious Error exceeding 50 
contracts will be subject to the Size Adjustment Modifier described 
above. The Exchange believes that it is appropriate to apply the Size 
Adjustment Modifier to non-Customer orders because the hedging cost 
associated with trading larger sized options orders and the market 
impact of larger blocks of underlying can be significant.
    As an example of the application of the Size Adjustment Modifier, 
assume Exchange A has a quoted bid to buy 50 contracts at $2.50, 
Exchange B has a quoted bid to buy 100 contracts at $2.05 and there is 
no other options exchange quoting a bid priced higher than $2.00. 
Assume that the NBBO is $2.50 by $3.00. Finally, assume that all orders 
quoted and submitted to Exchange B in connection with this example are 
non-Customer orders.
     Assume Exchange A's quoted bid at $2.50 is either executed 
or cancelled.
     Assume Exchange B immediately thereafter receives an 
incoming market order to sell 100 contracts.
     The incoming order would be executed against Exchange B's 
resting bid at $2.05 for 100 contracts.
     Because the 100 contract execution of the incoming sell 
order was priced at $2.05, which is $0.45 below the Theoretical Price 
of $2.50, the 100 contract execution would qualify for adjustment as an 
Obvious Error.
     The normal adjustment process would adjust the execution 
of the 100 contracts to $2.35 per contract, which is the Theoretical 
Price minus $0.15.
     However, because the execution would qualify for the Size 
Adjustment Modifier of 2 times the adjustment price, the adjusted 
transaction would instead be to $2.20 per contract, which is the 
Theoretical Price minus $0.30.
    By reference to the example above, the Exchange reiterates that it 
believes that a Size Adjustment Modifier is appropriate, as the buyer 
in this example was originally willing to buy 100 contracts at $2.05 
and ended up paying $2.20 per contract for such execution. Without the 
Size Adjustment Modifier the buyer would have paid $2.35 per contract. 
Such buyer may be advantaged by the trade if the Theoretical Price is 
indeed closer to $2.50 per contract, however the buyer may not have 
wanted to buy so many contracts at a higher price and does incur 
increasing cost and risk due to the additional size of their quote. 
Thus, the proposed rule is attempting to strike a balance between 
various competing objectives, including recognition of cost and risk 
incurred in quoting larger size and incentivizing market participants 
to maintain appropriate controls to avoid errors.
    In contrast to non-Customer orders, where trades will be adjusted 
if they qualify as Obvious Errors, pursuant the Proposed Rule a trade 
that qualifies as an Obvious Error will be nullified where at least one 
party to the Obvious Error is a Customer. The Exchange also proposes, 
however, that if any Member submits requests to the Exchange for review 
of transactions pursuant to the Proposed Rule, and in aggregate that 
Member has 200 or more Customer transactions under review concurrently 
and the orders resulting in such transactions were submitted during the 
course of 2 minutes or less, where at least one party to the Obvious 
Error is a non-Customer, the Exchange will apply the non-Customer 
adjustment criteria described above to such transactions. The Exchange 
based its proposal of 200 transactions on the fact that the proposed 
level is reasonable as it is representative of an extremely large 
number of orders submitted to the Exchange that are, in turn, possibly 
erroneous. Similarly, the Exchange based its proposal of orders 
received in 2 minutes or less on the fact that this is a very short 
amount of time under which one Member could generate multiple erroneous 
transactions. In order for a participant to have more than 200 
transactions under review concurrently when the orders triggering such 
transactions were received in 2 minutes or less, the market participant 
will have far exceeded the normal behavior of customers deserving 
protected status.\8\ While the Exchange continues to believe that it is 
appropriate to nullify transactions in such a circumstance if both 
participants to a transaction are Customers, the Exchange does not 
believe it is appropriate to place the overall risk of a significant 
number of trade breaks on non-Customers that in the normal course of 
business may have engaged in additional hedging activity or trading 
activity based on such transactions. Thus, the Exchange believes it is 
necessary and appropriate to protect non-Customers in such a 
circumstance by applying the non-Customer adjustment criteria, and thus 
adjusting transactions as set forth above, in the event a Member has 
more than 200 transactions under review concurrently.
---------------------------------------------------------------------------

    \8\ The Exchange notes that in the third quarter of this year 
across all options exchanges the average number of valid Customer 
orders received and executed was less than 38 valid orders every two 
minutes. The number of obvious errors resulting from valid orders 
is, of course, a very small fraction of such orders.
---------------------------------------------------------------------------

Catastrophic Errors
    Consistent with the Current Rule, the Exchange proposes to adopt 
separate numerical thresholds for review of transactions for which the 
Exchange does not receive a filing requesting review within the Obvious 
Error timeframes set forth above. Based on this review these 
transactions may qualify as ``Catastrophic Errors.'' As proposed, a 
Catastrophic Error will be deemed to have occurred when the execution 
price of a transaction is higher or lower than the Theoretical Price 
for the series by an amount equal to at least the amount shown below:

------------------------------------------------------------------------
                    Theoretical price                     Minimum amount
------------------------------------------------------------------------
Below $2.00.............................................           $0.50
$2.00 to $5.00..........................................            1.00

[[Page 77563]]

 
Above $5.00 to $10.00...................................            1.50
Above $10.00 to $20.00..................................            2.00
Above $20.00 to $50.00..................................            2.50
Above $50.00 to $100.00.................................            3.00
Above $100.00...........................................            4.00
------------------------------------------------------------------------

Based on industry feedback on the Catastrophic Error thresholds set 
forth under the Current Rule, the thresholds proposed as set forth 
above are more granular and lower (i.e., more likely to qualify) than 
the thresholds under the Current Rule. As noted above, under the 
Proposed Rule as well as the Current Rule, parties have additional time 
to submit transactions for review as Catastrophic Errors. As proposed, 
notification requesting review must be received by the Exchange's Trade 
Desk by 8:30 a.m. Eastern Time on the first trading day following the 
execution. For transactions in an expiring options series that take 
place on an expiration day, a party must notify the Exchange's Trade 
Desk within 45 minutes after the close of trading that same day. As is 
true for requests for review under the Obvious Error provision of the 
Proposed Rule, a party requesting review of a transaction as a 
Catastrophic Error must notify the Exchange's Trade Desk in the manner 
specified from time to time by the Exchange in a circular distributed 
to Members. By definition, any execution that qualifies as a 
Catastrophic Error is also an Obvious Error. However, the Exchange 
believes it is appropriate to maintain these two types of errors 
because the Catastrophic Error provisions provide market participants 
with a longer notification period under which they may file a request 
for review with the Exchange of a potential Catastrophic Error than a 
potential Obvious Error. This provides an additional level of 
protection for transactions that are severely erroneous even in the 
event a participant does not submit a request for review in a timely 
fashion.
    The Proposed Rule would specify the action to be taken by the 
Exchange if it is determined that a Catastrophic Error has occurred, as 
described below, and would require the Exchange to promptly notify both 
parties to the trade electronically or via telephone. In the event of a 
Catastrophic Error, the execution price of the transaction will be 
adjusted by the Official pursuant to the table below.

------------------------------------------------------------------------
                                                Buy            Sell
                                            transaction     transaction
         Theoretical price (TP)            adjustment--    adjustment--
                                              TP plus        TP minus
------------------------------------------------------------------------
Below $2.00.............................           $0.50           $0.50
$2.00 to $5.00..........................            1.00            1.00
Above $5.00 to $10.00...................            1.50            1.50
Above $10.00 to $20.00..................            2.00            2.00
Above $20.00 to $50.00..................            2.50            2.50
Above $50.00 to $100.00.................            3.00            3.00
Above $100.00...........................            4.00            4.00
------------------------------------------------------------------------

Although Customer orders would be adjusted in the same manner as non-
Customer orders, any Customer order that qualifies as a Catastrophic 
Error will be nullified if the adjustment would result in an execution 
price higher (for buy transactions) or lower (for sell transactions) 
than the Customer's limit price. Based on industry feedback, the levels 
proposed above with respect to adjustment amounts are the same levels 
as the thresholds at which a transaction may be deemed a Catastrophic 
Error pursuant to the chart set forth above.
    As is true for Obvious Errors as described above, the Exchange 
believes that it is appropriate to adjust to prices a specified amount 
away from Theoretical Price rather than to adjust to Theoretical Price 
because even though the Exchange has determined a given trade to be 
erroneous in nature, the parties in question should have had some 
expectation of execution at the price or prices submitted. Also, it is 
common that by the time it is determined that a Catastrophic Error has 
occurred additional hedging and trading activity has already occurred 
based on the executions that previously happened. The Exchange is 
concerned that an adjustment to Theoretical Price in all cases would 
not appropriately incentivize market participants to maintain 
appropriate controls to avoid potential errors. Further, the Exchange 
believes it is appropriate to maintain a higher adjustment level for 
Catastrophic Errors than Obvious Errors given the significant 
additional time that can potentially pass before an adjustment is 
requested and applied and the amount of hedging and trading activity 
that can occur based on the executions at issue during such time. For 
the same reasons, other than honoring the limit prices established for 
Customer orders, the Exchange has proposed to treat all market 
participants the same in the context of the Catastrophic Error 
provision. Specifically, the Exchange believes that treating market 
participants the same in this context will provide additional certainty 
to market participants with respect to their potential exposure and 
hedging activities, including comfort that even if a transaction is 
later adjusted (i.e., past the standard time limit for filing under the 
Obvious Error provision), such transaction will not be fully nullified. 
However, as noted above, under the Proposed Rule where at least one 
party to the transaction is a Customer, the trade will be nullified if 
the adjustment would result in an execution price higher (for buy 
transactions) or lower (for sell transactions) than the Customer's 
limit price. The Exchange has retained the protection of a Customer's 
limit price in order to avoid a situation where the adjustment could be 
to a price that the Customer could not afford, which is less likely to 
be an issue for a market professional.
Significant Market Events
    In order to improve consistency for market participants in the case 
of a widespread market event and in light of the interconnected nature 
of the options exchanges, the Exchange proposes to adopt a new 
provision that calls for coordination between the options exchanges in 
certain circumstances and provides limited flexibility in the 
application of other provisions of the Proposed Rule in order to 
promptly respond to a widespread market event.\9\

[[Page 77564]]

The Exchange proposes to describe such an event as a Significant Market 
Event, and to set forth certain objective criteria that will determine 
whether such an event has occurred. The Exchange developed these 
objective criteria in consultation with the other options exchanges by 
reference to historical patterns and events with a goal of setting 
thresholds that very rarely will be triggered so as to limit the 
application of the provision to truly significant market events. As 
proposed, a Significant Market Event will be deemed to have occurred 
when proposed criterion (A) below is met or the sum of all applicable 
event statistics, where each is expressed as a percentage of the 
relevant threshold in criteria (A) through (D) below, is greater than 
or equal to 150% and 75% or more of at least one category is reached, 
provided that no single category can contribute more than 100% to the 
sum. All criteria set forth below will be measured in aggregate across 
all exchanges.
---------------------------------------------------------------------------

    \9\ Although the Exchange has proposed a specific provision 
related to coordination amongst options exchanges in the context of 
a widespread event, the Exchange does not believe that the 
Significant Market Event provision or any other provision of the 
proposed rule alters the Exchange's ability to coordinate with other 
options exchanges in the normal course of business with respect to 
market events or activity. The Exchange does already coordinate with 
other options exchanges to the extent possible if such coordination 
is necessary to maintain a fair and orderly market and/or to fulfill 
the Exchange's duties as a self-regulatory organization.
---------------------------------------------------------------------------

    The proposed criteria for determining a Significant Market Event 
are as follows:
    (A) Transactions that are potentially erroneous would result in a 
total Worst-Case Adjustment Penalty greater than or equal to 
$30,000,000, where the Worst-Case Adjustment Penalty is computed as the 
sum, across all potentially erroneous trades, of: (i) $0.30 (i.e., the 
largest Transaction Adjustment value listed in sub-paragraph (e)(3)(A) 
below); times; (ii) the contract multiplier for each traded contract; 
times (iii) the number of contracts for each trade; times (iv) the 
appropriate Size Adjustment Modifier for each trade, if any, as defined 
in sub-paragraph (e)(3)(A) below;
    (B) Transactions involving over 500,000 options contracts are 
potentially erroneous;
    (C) Transactions with a notional value (i.e., number of contracts 
traded multiplied by the option premium multiplied by the contract 
multiplier) of more than $100,000,000 are potentially erroneous;
    (D) Over 10,000 transactions are potentially erroneous.
    As described above, the Exchange proposes to adopt a Worst Case 
Adjustment Penalty, proposed as criterion (A), which is the only 
criterion that can on its own result in an event being designated as a 
significant market event. The Worst Case Adjustment Penalty is intended 
to develop an objective criterion that can be quickly determined by the 
Exchange in consultation with other options exchanges that approximates 
the total overall exposure to market participants on the negatively 
impacted side of each transaction that occurs during an event. If the 
Worst Case Adjustment criterion exceeds $30,000,000, then an event is a 
Significant Market Event. As an example of the Worst Case Adjustment 
Penalty, assume that a single potentially erroneous transaction in an 
event is as follows: Sale of 100 contracts of a standard option (i.e., 
an option with a 100 share multiplier). The highest potential 
adjustment penalty for this single transaction would be $6,000, which 
would be calculated as $0.30 times 100 (contract multiplier) times 100 
(number of contracts) times 2 (applicable Size Adjustment Modifier). 
The Exchange would calculate the highest potential adjustment penalty 
for each of the potentially erroneous transactions in the event and the 
Worst Case Adjustment Penalty would be the sum of such penalties on the 
Exchange and all other options exchanges with affected transactions.
    As described above, under the Proposed Rule if the Worst Case 
Adjustment Penalty does not exceed $30,000,000, then a Significant 
Market Event has occurred if the sum of all applicable event statistics 
(expressed as a percentage of the relevant thresholds), is greater than 
or equal to 150% and 75% or more of at least one category is reached. 
The Proposed Rule further provides that no single category can 
contribute more than 100% to the sum. As an example of the application 
of this provision, assume that in a given event across all options 
exchanges that: (A) The Worst Case Adjustment Penalty is $12,000,000 
(40% of $30,000,000), (B) 300,000 options contracts are potentially 
erroneous (60% of 500,000), (C) the notional value of potentially 
erroneous transactions is $30,000,000 (30% of $100,000,000), and (D) 
12,000 transactions are potentially erroneous (120% of 10,000). This 
event would qualify as a Significant Market Event because the sum of 
all applicable event statistics would be 230%, far exceeding the 150% 
threshold. The 230% sum is reached by adding 40%, 60%, 30% and last, 
100% (i.e., rounded down from 120%) for the number of transactions. The 
Exchange notes that no single category can contribute more than 100% to 
the sum and any category contributing more than 100% will be rounded 
down to 100%.
    As an alternative example, assume a large-scale event occurs 
involving low-priced options with a small number of contracts in each 
execution. Assume in this event across all options exchanges that: (A) 
The Worst Case Adjustment Penalty is $600,000 (2% of $30,000,000), (B) 
20,000 options contracts are potentially erroneous (4% of 500,000), (C) 
the notional value of potentially erroneous transactions is $20,000,000 
(20% of $100,000,000), and (D) 20,000 transactions are potentially 
erroneous (200% of 10,000, but rounded down to 100%). This event would 
not qualify as a Significant Market Event because the sum of all 
applicable event statistics would be 126%, below the 150% threshold. 
The Exchange reiterates that as proposed, even when a single category 
other than criterion (A) is fully met, that does not necessarily 
qualify an event as a Significant Market Event.
    The Exchange believes that the breadth and scope of the obvious 
error rules are appropriate and sufficient for handling of typical and 
common obvious errors. Coordination between and among the exchanges 
should generally not be necessary even when a member has an error that 
results in executions on more than one exchange. In setting the 
thresholds above the Exchange believes that the requirements will be 
met only when truly widespread and significant errors happen and the 
benefits of coordination and information sharing far outweigh the costs 
of the logistics of additional intra-exchange coordination. The 
Exchange notes that in addition to its belief that the proposed 
thresholds are sufficiently high, the Exchange has proposed the 
requirement that either criterion (A) is met or the sum of applicable 
event statistics for proposed (A) through (D) equals or exceeds 150% in 
order to ensure that an event is sufficiently large but also to avoid 
situations where an event is extremely large but just misses potential 
qualifying thresholds. For instance, the proposal is designed to help 
avoid a situation where the Worst Case Adjustment Penalty is 
$15,000,000, so the event does not qualify based on criterion (A) 
alone, but there are transactions in 490,000 options contracts that are 
potentially erroneous (missing criterion (B) by 10,000 contracts), 
there transactions with a notional value of $99,000,000 (missing 
criterion (C) by $1,000,000), and there are 9,000 potentially erroneous 
transactions overall (missing criterion (D) by 1,000 transactions). The 
Exchange believes that the proposed formula, while slightly more 
complicated than simply requiring a certain threshold to be met in each 
category, may help to avoid inapplicability of the proposed

[[Page 77565]]

provisions in the context of an event that would be deemed significant 
by most subjective measures but that barely misses each of the 
objective criteria proposed by the Exchange.
    To ensure consistent application across options exchanges, in the 
event of a suspected Significant Market Event, the Exchange shall 
initiate a coordinated review of potentially erroneous transactions 
with all other affected options exchanges to determine the full scope 
of the event. Under the Proposed Rule, the Exchange will promptly 
coordinate with the other options exchanges to determine the 
appropriate review period as well as select one or more specific points 
in time prior to the transactions in question and use one or more 
specific points in time to determine Theoretical Price. Other than the 
selected points in time, if applicable, the Exchange will determine 
Theoretical Price as described above. For example, around the start of 
a SME that is triggered by a large and aggressively priced buy order, 
three exchanges have multiple orders on the offer side of the market: 
Exchange A has offers priced at $2.20, $2.25, $2.30 and several other 
price levels to $3.00, Exchange B has offers at $2.45, $2.30 and 
several other price levels to $3.00, Exchange C has offers at price 
levels between $2.50 and $3.00. Assume an event occurs starting at 
10:05:25 a.m. ET and in this particular series the executions begin on 
Exchange A and subsequently begin to occur on Exchanges B and C. 
Without coordination and information sharing between the exchanges, 
Exchange B and Exchange C cannot know with certainty that whether or 
not the execution at Exchange A that happened at $2.20 immediately 
prior to their executions at $2.45 and $2.50 is part of the same 
erroneous event or not. With proper coordination, the exchanges can 
determine that in this series, the proper point in time from which the 
event should be analyzed is 10:05:25 a.m. ET, and thus, the NBO of 
$2.20 should be used as the Theoretical Price for purposes of all buy 
transactions in such options series that occurred during the event.
    If it is determined that a Significant Market Event has occurred 
then, using the parameters agreed with respect to the times from which 
Theoretical Price will be calculated, if applicable, an Official will 
determine whether any or all transactions under review qualify as 
Obvious Errors. The Proposed Rule would require the Exchange to use the 
criteria in Proposed Rule 20.6(c), as described above, to determine 
whether an Obvious Error has occurred for each transaction that was 
part of the Significant Market Event. Upon taking any final action, the 
Exchange would be required to promptly notify both parties to the trade 
electronically or via telephone.
    The execution price of each affected transaction will be adjusted 
by an Official to the price provided below, unless both parties agree 
to adjust the transaction to a different price or agree to bust the 
trade.

------------------------------------------------------------------------
                                                Buy            Sell
                                            transaction     transaction
         Theoretical price (TP)            adjustment--    adjustment--
                                              TP plus        TP minus
------------------------------------------------------------------------
Below $3.00.............................           $0.15           $0.15
At or above $3.00.......................           $0.30           $0.30
------------------------------------------------------------------------

Thus, the proposed adjustment criteria for Significant Market Events 
are identical to the proposed adjustment levels for Obvious Errors 
generally. In addition, in the context of a Significant Market Event, 
any error exceeding 50 contracts will be subject to the Size Adjustment 
Modifier described above. Also, the adjustment criteria would apply 
equally to all market participants (i.e., Customers and non-Customers) 
in a Significant Market Event. However, as is true for the proposal 
with respect to Catastrophic Errors, under the Proposed Rule where at 
least one party to the transaction is a Customer, the trade will be 
nullified if the adjustment would result in an execution price higher 
(for buy transactions) or lower (for sell transactions) than the 
Customer's limit price. The Exchange has retained the protection of a 
Customer's limit price in order to avoid a situation where the 
adjustment could be to a price that the Customer could not afford, 
which is less likely to be an issue for a market professional. The 
Exchange has otherwise proposed to treat all market participants the 
same in the context of a Significant Market Event to provide additional 
certainty to market participants with respect to their potential 
exposure as soon as an event has occurred.
    Another significant distinction between the proposed Obvious Error 
provision and the proposed Significant Market Event provision is that 
if the Exchange, in consultation with other options exchanges, 
determines that timely adjustment is not feasible due to the 
extraordinary nature of the situation, then the Exchange will nullify 
some or all transactions arising out of the Significant Market Event 
during the review period selected by the Exchange and other options 
exchanges. To the extent the Exchange, in consultation with other 
options exchanges, determines to nullify less than all transactions 
arising out of the Significant Market Event, those transactions subject 
to nullification will be selected based upon objective criteria with a 
view toward maintaining a fair and orderly market and the protection of 
investors and the public interest. For example, assume a Significant 
Market Event causes 25,000 potentially erroneous transactions and 
impacts 51 options classes. Of the 25,000 transactions, 24,000 of them 
are concentrated in a single options class. The exchanges may decide 
the most appropriate solution because it will provide the most 
certainty to participants and allow for the prompt resumption of 
regular trading is to bust all trades in the most heavily affected 
class between two specific points in time, while the other 1,000 trades 
across the other 50 classes are reviewed and adjusted as appropriate. A 
similar situation might arise directionally where a Customer submits 
both erroneous buy and sell orders and the number of errors that 
happened that were erroneously low priced (i.e., erroneous sell orders) 
were 50,000 in number but the number of errors that were erroneously 
high (i.e., erroneous buy orders) were only 500 in number. The most 
effective and efficient approach that provides the most certainty to 
the marketplace in a reasonable amount of time while most closely 
following the generally prescribed obvious error rules could be to bust 
all of the erroneous sell transactions but to adjust the erroneous buy 
transactions.
    With respect to rulings made pursuant to the proposed Significant 
Market Event provision the Exchange believes that the number of 
affected transactions is such that immediate finality is necessary to 
maintain a fair and orderly market and to protect investors and the 
public interest. Accordingly, rulings by the Exchange pursuant to the 
Significant Market Event provision would be non-appealable pursuant to 
the Proposed Rule.
Additional Provisions
Mutual Agreement
    In addition to the objective criteria described above, the Proposed 
Rule also proposes to make clear that the determination as to whether a 
trade was executed at an erroneous price may be made by mutual 
agreement of the affected parties to a particular transaction. The 
Proposed Rule would state that a trade may be nullified or

[[Page 77566]]

adjusted on the terms that all parties to a particular transaction 
agree, provided, however, that such agreement to nullify or adjust must 
be conveyed to the Exchange in a manner prescribed by the Exchange 
prior to 8:30 a.m. Eastern Time on the first trading day following the 
execution.
    The Exchange also proposes to explicitly state that it is 
considered conduct inconsistent with just and equitable principles of 
trade for any Member to use the mutual adjustment process to circumvent 
any applicable Exchange rule, the Act or any of the rules and 
regulations thereunder. Thus, for instance, a Member is precluded from 
seeking to avoid applicable trade-through rules by executing a 
transaction and then adjusting such transaction to a price at which the 
Exchange would not have allowed it to execute at the time of the 
execution because it traded through the quotation of another options 
exchange. The Exchange notes that in connection with its obligations as 
a self-regulatory organization, the Exchange's Regulatory Department 
reviews adjustments to transactions to detect potential violations of 
Exchange rules or the Act and the rules and regulations thereunder.
Trading Halts
    Exchange Rule 20.3 describes the Exchange's authority to declare 
trading halts in one or more options traded on the Exchange. The 
Exchange proposes to make clear in the Proposed Rule that it will 
nullify any transaction that occurs during a trading halt in the 
affected option on the Exchange pursuant to Rule 20.3. If any trades 
occur notwithstanding a trading halt then the Exchange believes it 
appropriate to nullify such transactions. While the Exchange may halt 
options trading for various reasons, such a scenario almost certainly 
is due to extraordinary circumstances and is potentially the result of 
market-wide coordination to halt options trading or trading generally. 
Accordingly, the Exchange does not believe it is appropriate to allow 
trades to stand if such trades should not have occurred in the first 
place.
    The Exchange proposes to modify Interpretation and Policy .01 to 
Rule 20.3. Currently, Interpretation and Policy .01 states that the 
Exchange ``may'' nullify any transaction that occurs: (a) During a 
trading halt in the affected option on the Exchange; or (b) with 
respect to equity options (including options overlying ETFs), during a 
trading halt on the primary listing market for the underlying security. 
To ensure consistency with the trading halt provision of the Proposed 
Rule, the Exchange proposes to modify Interpretation and Policy .01 to 
Rule 20.3 to state that in either situation the Exchange ``shall'' 
nullify transactions.
Erroneous Print and Quotes in Underlying Security
    Market participants on the Exchange likely base the pricing of 
their orders submitted to the Exchange on the price of the underlying 
security for the option. Thus, the Exchange believes it is appropriate 
to adopt provisions that allow adjustment or nullification of 
transactions based on erroneous prints or erroneous quotes in the 
underlying security.
    The Exchange proposes to adopt language in the Proposed Rule 
stating that a trade resulting from an erroneous print(s) disseminated 
by the underlying market that is later nullified by that underlying 
market shall be adjusted or busted as set forth in the Obvious Error 
provisions of the Proposed Rule, provided a party notifies the 
Exchange's Trade Desk in a timely manner, as further described below. 
The Exchange proposes to define a trade resulting from an erroneous 
print(s) as any options trade executed during a period of time for 
which one or more executions in the underlying security are nullified 
and for one second thereafter. The Exchange believes that one second is 
an appropriate amount of time in which an options trade would be 
directly based on executions in the underlying equity security. The 
Exchange also proposes to require that if a party believes that it 
participated in an erroneous transaction resulting from an erroneous 
print(s) pursuant to the proposed erroneous print provision it must 
notify the Exchange's Trade Desk within the timeframes set forth in the 
Obvious Error provision described above. The Exchange has also proposed 
to state that the allowed notification timeframe commences at the time 
of notification by the underlying market(s) of nullification of 
transactions in the underlying security. Further, the Exchange proposes 
that if multiple underlying markets nullify trades in the underlying 
security, the allowed notification timeframe will commence at the time 
of the first market's notification.
    As an example of a situation in which a trade results from an 
erroneous print disseminated by the underlying market that is later 
nullified by the underlying market, assume that a given underlying is 
trading in the $49.00-$50.00 price range then has an erroneous print at 
$5.00. Given that there is the potential perception that the underlying 
has gone through a dramatic price revaluation, numerous options trades 
could promptly trigger based off of this new price. However, because 
the price that triggered them was not a valid price it would be 
appropriate to review said option trades when the underlying print that 
triggered them is removed.
    The Exchange also proposes to add a provision stating that a trade 
resulting from an erroneous quote(s) in the underlying security shall 
be adjusted or busted as set forth in the Obvious Error provisions of 
the Proposed Rule, provided a party notifies the Exchange's Trade Desk 
in a timely manner, as further described below. Pursuant to the 
Proposed Rule, an erroneous quote occurs when the underlying security 
has a width of at least $1.00 and has a width at least five times 
greater than the average quote width for such underlying security 
during the time period encompassing two minutes before and after the 
dissemination of such quote. For purposes of the Proposed Rule, the 
average quote width will be determined by adding the quote widths of 
sample quotations at regular 15-second intervals during the four-minute 
time period referenced above (excluding the quote(s) in question) and 
dividing by the number of quotes during such time period (excluding the 
quote(s) in question).\10\ Similar to the proposal with respect to 
erroneous prints described above, if a party believes that it 
participated in an erroneous transaction resulting from an erroneous 
quote(s) it must notify the Exchange's Trade Desk in accordance with 
the notification provisions of the Obvious Error provision described 
above. The Proposed Rule, therefore, puts the onus on each Member to 
notify the Exchange if such Member believes that a trade should be 
reviewed pursuant to either of the proposed provisions, as the Exchange 
is not in position to determine the impact of erroneous prints or 
quotes on individual Members. The Exchange notes that it does not 
believe that additional time is necessary with respect to a trade based 
on an erroneous quote because a Member has all information necessary to 
detect the error at the time of an option transaction that was 
triggered by an erroneous quote, which is in contrast to the proposed 
erroneous print provision that includes a dependency on an action

[[Page 77567]]

by the market where the underlying security traded.
---------------------------------------------------------------------------

    \10\ The Exchange has proposed the price and time parameters for 
quote width and average quote width used to determine whether an 
erroneous quote has occurred based on established rules of options 
exchanges that currently apply such parameters. See, e.g., CBOE Rule 
6.25(a)(5); NYSE Arca Rule 6.87(a)(5). Based on discussions with 
these exchanges, the Exchange believes that the parameters are a 
reasonable approach to determine whether an erroneous quote has 
occurred for purposes of the proposed rule.
---------------------------------------------------------------------------

    As an example of a situation in which a trade results from an 
erroneous quote in the underlying security, assume again that a given 
underlying is quoting and trading in the $49.00-$50.00 price range then 
a liquidity gap occurs, with bidders not representing quotes in the 
market place and an offer quoted at $5.00. Quoting may quickly return 
to normal, again in the $49.00-$50.00 price range, but due to the 
potential perception that the underlying has gone through a dramatic 
price revaluation, numerous options trades could trigger based off of 
this new quoted price in the interim. Because the price that triggered 
such trades was not a valid price it would be appropriate to review 
said option trades.
Stop (and Stop-Limit) Order Trades Triggered by Erroneous Trades
    The Exchange notes that certain market participants and their 
customers enter stop or stop limit orders that are triggered based on 
executions in the marketplace. As proposed, transactions resulting from 
the triggering of a stop or stop-limit order by an erroneous trade in 
an option contract shall be nullified by the Exchange, provided a party 
notifies the Exchange's Trade Desk in a timely manner as set forth 
below. The Exchange believes it is appropriate to nullify executions of 
stop or stop-limit orders that were wrongly triggered because such 
transactions should not have occurred. If a party believes that it 
participated in an erroneous transaction pursuant to the Proposed Rule 
it must notify the Exchange's Trade Desk within the timeframes set 
forth in the Obvious Error Rule above, with the allowed notification 
timeframe commencing at the time of notification of the nullification 
of transaction(s) that triggered the stop or stop-limit order.
Linkage Trades
    The Exchange also proposes to adopt language that clearly provides 
the Exchange with authority to take necessary actions when another 
options exchange nullifies or adjusts a transaction pursuant to its 
respective rules and the transaction resulted from an order that has 
passed through the Exchange and been routed on to another options 
exchange on behalf of the Exchange. Specifically, if the Exchange 
routes an order pursuant to the Intermarket Option Linkage Plan \11\ 
that results in a transaction on another options exchange (a ``Linkage 
Trade'') and such options exchange subsequently nullifies or adjusts 
the Linkage Trade pursuant to its rules, the Exchange will perform all 
actions necessary to complete the nullification or adjustment of the 
Linkage Trade. Although the Exchange is not utilizing its own authority 
to nullify or adjust a transaction related to an action taken on a 
Linkage Trade by another options exchange, the Exchange does have to 
assist in the processing of the adjustment or nullification of the 
order, such as notification to the Member and the OCC of the adjustment 
or nullification. Thus, the Exchange believes that the proposed 
provision adds additional transparency to the Proposed Rule.
---------------------------------------------------------------------------

    \11\ As defined in Exchange Rule 27.1(17).
---------------------------------------------------------------------------

Appeals
    The Exchange proposes to maintain its current appeals process in 
connection with the Proposed Rule. Specifically, if a member of BATS 
Options (``Options Member'') affected by a determination made under the 
Proposed Rule requests within the time permitted below, the Obvious 
Error Panel (``Obvious Error Panel'') will review decisions made by the 
BATS Official, including whether an obvious error occurred and whether 
the correct determination was made.
    In order to maintain a diverse group of participants, the Obvious 
Error Panel will be comprised of the Exchange's Chief Regulatory 
Officer (``CRO'') or a designee of the CRO, a representative of one (1) 
Options Member engaged in market making (any such representative, a 
``MM Representative'') and representatives from two (2) Options Members 
satisfying one or both of the criteria set forth below (any such 
representative, a ``Non-MM Representative''). To qualify as a Non-MM 
Representative a person must: Be employed by an Options Member whose 
revenues from options market making activity do not exceed ten percent 
(10%) of its total revenues; or have as his or her primary 
responsibility the handling of Public Customer orders or supervisory 
responsibility over persons with such responsibility, and not have any 
responsibilities with respect to market making activities.
    In order to further assure a diverse group of potential 
participants on an Obvious Error Panel, the Exchange shall designate at 
least ten (10) MM Representatives and at least ten (10) Non-MM 
Representatives to be called upon to serve on the Obvious Error Panel 
as needed. To assure fairness, in no case shall an Obvious Error Panel 
include a person affiliated with a party to the trade in question. 
Also, to the extent reasonably possible, the Exchange shall call upon 
the designated representatives to participate on an Obvious Error Panel 
on an equally frequent basis.
    Under the Proposed Rule a request for review on appeal must be made 
in writing via email or other electronic means specified from time to 
time by the Exchange in a circular distributed to Options Members 
within thirty (30) minutes after the party making the appeal is given 
notification of the initial determination being appealed. The Obvious 
Error Panel shall review the facts and render a decision as soon as 
practicable, but generally on the same trading day as the execution(s) 
under review. On requests for appeal received after 3:00 p.m. Eastern 
Time, a decision will be rendered as soon as practicable, but in no 
case later than the trading day following the date of the execution 
under review.
    The Obvious Error Panel may overturn or modify an action taken by 
the BATS Official under this Rule. All determinations by the Obvious 
Error Panel shall constitute final action by the Exchange on the matter 
at issue. The Exchange believes that this is necessary given the 
purpose of the appeal is finality.
    In order to deter frivolous appeals, if the Obvious Error Panel 
votes to uphold the decision made pursuant to the Proposed Rule, the 
Exchange will assess a $500.00 fee against the Options Member(s) who 
initiated the request for appeal. In addition, in instances where the 
Exchange, on behalf of an Options Member, requests a determination by 
another market center that a transaction is clearly erroneous, the 
Exchange will pass any resulting charges through to the relevant 
Options Member.
    Any determination by an Officer or by the Obvious Error Panel shall 
be rendered without prejudice as to the rights of the parties to the 
transaction to submit their dispute to arbitration.
Limit Up-Limit Down Plan
    The Exchange is proposing to adopt Interpretation and Policy .01 to 
the Proposed Rule to provide for how the Exchange will treat Obvious 
and Catastrophic Errors in response to the Regulation NMS Plan to 
Address Extraordinary Market Volatility Pursuant to Rule 608 of 
Regulation NMS under the Act (the ``Limit Up-Limit Down Plan'' or the 
``Plan),\12\ which is applicable to all NMS stocks, as defined in 
Regulation NMS Rule 600(b)(47).\13\ Under the Proposed Rule, during a 
pilot

[[Page 77568]]

period to coincide with the pilot period for the Plan, including any 
extensions to the pilot period for the Plan, an execution will not be 
subject to review as an Obvious Error or Catastrophic Error pursuant to 
paragraph (c) or (d) of the Proposed Rule if it occurred while the 
underlying security was in a ``Limit State'' or ``Straddle State,'' as 
defined in the Plan. The Exchange, however, proposes to retain 
authority to review transactions on an Official's own motion pursuant 
to sub-paragraph (c)(3) of the Proposed Rule and to bust or adjust 
transactions pursuant to the proposed Significant Market Event 
provision, the proposed trading halts provision, the proposed 
provisions with respect to erroneous prints and quotes in the 
underlying security, or the proposed provision related to stop and stop 
limit orders that have been triggered by an erroneous execution. The 
Exchange believes that these safeguards will provide the Exchange with 
the flexibility to act when necessary and appropriate to nullify or 
adjust a transaction, while also providing market participants with 
certainty that, under normal circumstances, the trades they affect with 
quotes and/or orders having limit prices will stand irrespective of 
subsequent moves in the underlying security.
---------------------------------------------------------------------------

    \12\ Securities Exchange Act Release No. 67091 (May 31, 2012), 
77 FR 33498 (June 6, 2012) (order approving the Plan on a pilot 
basis).
    \13\ 17 CFR 242.600(b)(47).
---------------------------------------------------------------------------

    During a Limit or Straddle State, options prices may deviate 
substantially from those available immediately prior to or following 
such States. Thus, determining a Theoretical Price in such situations 
would often be very subjective, creating unnecessary uncertainty and 
confusion for investors. Because of this uncertainty, the Exchange is 
proposing to amend Rule 20.6 to provide that the Exchange will not 
review transactions as Obvious Errors or Catastrophic Errors when the 
underlying security is in a Limit or Straddle State.
    The Exchange notes that there are additional protections in place 
outside of the Obvious and Catastrophic Error Rule that will continue 
to safeguard customers. First, the Exchange rejects all un-priced 
options orders received by the Exchange (i.e., Market Orders) during a 
Limit or Straddle State for the underlying security. Second, SEC Rule 
15c3-5 requires that, ``financial risk management controls and 
supervisory procedures must be reasonably designed to prevent the entry 
of orders that exceed appropriate pre-set credit or capital thresholds, 
or that appear to be erroneous.'' \14\ Third, the Exchange has price 
checks applicable to limit orders that reject limit orders that are 
priced sufficiently far through the national best bid or national best 
offer (``NBBO'') that it seems likely an error occurred. The rejection 
of Market Orders, the requirements placed upon broker dealers to adopt 
controls to prevent the entry of orders that appear to be erroneous, 
and Exchange functionality that filters out orders that appear to be 
erroneous, will all serve to sharply reduce the incidence of erroneous 
transactions.
---------------------------------------------------------------------------

    \14\ See Securities and Exchange Act Release No. 63241 (November 
3, 2010), 75 FR 69791 (November 15, 2010) (File No. S7-03-10).
---------------------------------------------------------------------------

    The Exchange represents that it will conduct its own analysis 
concerning the elimination of the Obvious Error and Catastrophic Error 
provisions during Limit and Straddle States and agrees to provide the 
Commission with relevant data to assess the impact of this proposed 
rule change. As part of its analysis, the Exchange will evaluate (1) 
the options market quality during Limit and Straddle States, (2) assess 
the character of incoming order flow and transactions during Limit and 
Straddle States, and (3) review any complaints from Members and their 
customers concerning executions during Limit and Straddle States. The 
Exchange also agrees to provide to the Commission data requested to 
evaluate the impact of the inapplicability of the Obvious Error and 
Catastrophic Error provisions, including data relevant to assessing the 
various analyses noted above.
    In connection with this proposal, the Exchange will provide to the 
Commission and the public a dataset containing the data for each 
Straddle State and Limit State in NMS Stocks underlying options traded 
on the Exchange beginning in the month during which the proposal is 
approved, limited to those option classes that have at least one (1) 
trade on the Exchange during a Straddle State or Limit State. For each 
of those option classes affected, each data record will contain the 
following information:
     Stock symbol, option symbol, time at the start of the 
Straddle or Limit State, an indicator for whether it is a Straddle or 
Limit State.
     For activity on the Exchange:
    [cir] executed volume, time-weighted quoted bid-ask spread, time-
weighted average quoted depth at the bid, time-weighted average quoted 
depth at the offer;
    [cir] high execution price, low execution price;
    [cir] number of trades for which a request for review for error was 
received during Straddle and Limit States;
    [cir] an indicator variable for whether those options outlined 
above have a price change exceeding 30% during the underlying stock's 
Limit or Straddle State compared to the last available option price as 
reported by OPRA before the start of the Limit or Straddle State (1 if 
observe 30% and 0 otherwise). Another indicator variable for whether 
the option price within five minutes of the underlying stock leaving 
the Limit or Straddle state (or halt if applicable) is 30% away from 
the price before the start of the Limit or Straddle State.
    In addition, the Exchange shall provide to the Commission 
assessments relating to the impact of the operation of the Obvious 
Error rules during Limit and Straddle States as follows: (1) Evaluate 
the statistical and economic impact of Limit and Straddle States on 
liquidity and market quality in the options markets; and (2) Assess 
whether the lack of Obvious Error rules in effect during the Straddle 
and Limit States are problematic. The timing of this submission would 
coordinate with Participants' proposed time frame to submit to the 
Commission assessments as required under Appendix B of the Plan.
No Adjustments to a Worse Price
    Finally, the Exchange proposes to include Interpretation and Policy 
.02 to the Proposed Rule, which would make clear that to the extent the 
provisions of the proposed Rule would result in the Exchange applying 
an adjustment of an erroneous sell transaction to a price lower than 
the execution price or an erroneous buy transaction to a price higher 
than the execution price, the Exchange will not adjust or nullify the 
transaction, but rather, the execution price will stand.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with the 
requirements of the Act and the rules and regulations thereunder that 
are applicable to a national securities exchange, and, in particular, 
with the requirements of section 6(b) of the Act.\15\ Specifically, the 
proposal is consistent with section 6(b)(5) of the Act \16\ because it 
would promote just and equitable principles of trade, remove 
impediments to, and perfect the mechanism of, a free and open market 
and a national market system, and, in general, protect investors and 
the public interest.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As described above, the Exchange and other options exchanges are 
seeking to adopt harmonized rules related to the adjustment and 
nullification of erroneous options transactions. The

[[Page 77569]]

Exchange believes that the Proposed Rule will provide greater 
transparency and clarity with respect to the adjustment and 
nullification of erroneous options transactions. Particularly, the 
proposed changes seek to achieve consistent results for participants 
across U.S. options exchanges while maintaining a fair and orderly 
market, protecting investors and protecting the public interest. Based 
on the foregoing, the Exchange believes that the proposal is consistent 
with section 6(b)(5) of the Act \17\ in that the Proposed Rule will 
foster cooperation and coordination with persons engaged in regulating 
and facilitating transactions.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes the various provisions allowing or dictating 
adjustment rather than nullification of a trade are necessary given the 
benefits of adjusting a trade price rather than nullifying the trade 
completely. Because options trades are used to hedge, or are hedged by, 
transactions in other markets, including securities and futures, many 
Members, and their customers, would rather adjust prices of executions 
rather than nullify the transactions and, thus, lose a hedge 
altogether. As such, the Exchange believes it is in the best interest 
of investors to allow for price adjustments as well as nullifications. 
The Exchange further discusses specific aspects of the Proposed Rule 
below.
    The Exchange does not believe that the proposal is unfairly 
discriminatory, even though it differentiates in many places between 
Customers and non-Customers. The rules of the options exchanges, 
including the Exchange's existing Obvious Error provision, often treat 
Customers differently, often affording them preferential treatment. 
This treatment is appropriate in light of the fact that Customers are 
not necessarily immersed in the day-to-day trading of the markets, are 
less likely to be watching trading activity in a particular option 
throughout the day, and may have limited funds in their trading 
accounts. At the same time, the Exchange reiterates that in the U.S. 
options markets generally there is significant retail customer 
participation that occurs directly on (and only on) options exchanges 
such as the Exchange. Accordingly, differentiating among market 
participants with respect to the adjustment and nullification of 
erroneous options transactions is not unfairly discriminatory because 
it is reasonable and fair to provide Customers with additional 
protections as compared to non-Customers.
    The Exchange believes that its proposal with respect to the 
allowance of mutual agreed upon adjustments or nullifications is 
appropriate and consistent with the Act, as such proposal removes 
impediments to and perfects the mechanism of a free and open market and 
a national market system, allowing participants to mutually agree to 
correct an erroneous transactions without the Exchange mandating the 
outcome. The Exchange also believes that its proposal with respect to 
mutual adjustments is consistent with the Act because it is designed to 
prevent fraudulent and manipulative acts and practices by explicitly 
stating that it is considered conduct inconsistent with just and 
equitable principles of trade for any Member to use the mutual 
adjustment process to circumvent any applicable Exchange rule, the Act 
or any of the rules and regulations thereunder.
    The Exchange believes its proposal to provide within the Proposed 
Rule definitions of Customer, erroneous sell transaction and erroneous 
buy transaction, and Official is consistent with section 6(b)(5) of the 
Act because such terms will provide more certainty to market 
participants as to the meaning of the Proposed Rule and reduce the 
possibility that a party can intentionally submit an order hoping for 
the market to move in their favor in reliance on the Rule as a safety 
mechanism, thereby promoting just and fair principles of trade. 
Similarly, the Exchange believes that proposed Interpretation and 
Policy .02 is consistent with the Act as it would make clear that the 
Exchange will not adjust or nullify a transaction, but rather, the 
execution price will stand when the applicable adjustment criteria 
would actually adjust the price of the transaction to a worse price 
(i.e., higher for an erroneous buy or lower for an erroneous sell 
order).
    As set forth below, the Exchange believes it is consistent with 
section 6(b)(5) of the Act for the Exchange to determine Theoretical 
Price when the NBBO cannot reasonably be relied upon because the 
alternative could result in transactions that cannot be adjusted or 
nullified even when they are otherwise clearly at a price that is 
significantly away from the appropriate market for the option. 
Similarly, reliance on an NBBO that is not reliable could result in 
adjustment to prices that are still significantly away from the 
appropriate market for the option.
    The Exchange believes that its proposal with respect to determining 
Theoretical Price is consistent with the Act in that it has retained 
the standard of the current rule, which is to rely on the NBBO to 
determine Theoretical Price if such NBBO can reasonably be relied upon. 
Because, however, there is not always an NBBO that can or should be 
used in order to administer the rule, the Exchange has proposed various 
provisions that provide the Exchange with the authority to determine a 
Theoretical Price. The Exchange believes that the Proposed Rule is 
transparent with respect to the circumstances under which the Exchange 
will determine Theoretical Price, and has sought to limit such 
circumstances as much as possible. The Exchange notes that Exchange 
personnel currently are required to determine Theoretical Price in 
certain circumstances. While the Exchange continues to pursue 
alternative solutions that might further enhance the objectivity and 
consistency of determining Theoretical Price, the Exchange believes 
that the discretion currently afforded to Exchange Officials is 
appropriate in the absence of a reliable NBBO that can be used to set 
the Theoretical Price.
    With respect to the specific proposed provisions for determining 
Theoretical Price for transactions that occur as part of the Exchange's 
Opening Process and in situations where there is a wide quote, the 
Exchange believes both provisions are consistent with the Act because 
they provide objective criteria that will determine Theoretical Price 
with limited exceptions for situations where the Exchange does not 
believe the NBBO is a reasonable benchmark or there is no NBBO. The 
Exchange notes in particular with respect to the wide quote provision 
that the Proposed Rule will result in the Exchange determining 
Theoretical Price less frequently than it would pursuant to wide quote 
provisions that have previously been approved. The Exchange believes 
that it is appropriate and consistent with the Act to afford 
protections to market participants by not relying on the NBBO to 
determine Theoretical Price when the quote is extremely wide but had 
been, in the prior 10 seconds, at much more reasonable width. The 
Exchange also believes it is appropriate and consistent with the Act to 
use the NBBO to determine Theoretical Price when the quote has been 
wider than the applicable amount for more than 10 seconds, as the 
Exchange does not believe it is necessary to apply any other criteria 
in such a circumstance. The Exchange believes that market participants 
can easily use or adopt safeguards to prevent errors when such market 
conditions exist. When entering an order into a market with a

[[Page 77570]]

persistently wide quote, the Exchange does not believe that the 
entering party should reasonably expect anything other than the quoted 
price of an option.
    The Exchange believes that its proposal to adopt clear but 
disparate standards with respect to the deadline for submitting a 
request for review of Customer and non-Customer transactions is 
consistent with the Act, particularly in that it creates a greater 
level of protection for Customers. As noted above, the Exchange 
believes that this is appropriate and not unfairly discriminatory in 
light of the fact that Customers are not necessarily immersed in the 
day-to-day trading of the markets and are less likely to be watching 
trading activity in a particular option throughout the day. Thus, 
Members representing Customer orders reasonably may need additional 
time to submit a request for review. The Exchange also believes that 
its proposal to provide additional time for submission of requests for 
review of linkage trades is reasonable and consistent with the 
protection of investors and the public interest due to the time that it 
might take an options exchange or third-party routing broker to file a 
request for review with the Exchange if the initial notification of an 
error is received by the originating options exchange near the end of 
such options exchange's filing deadline. Without this additional time, 
there could be disparate results based purely on the existence of 
intermediaries and an interconnected market structure.
    In relation to the aspect of the proposal giving Officials the 
ability to review transactions for obvious errors on their own motion, 
the Exchange notes that an Official can adjust or nullify a transaction 
under the authority granted by this provision only if the transaction 
meets the specific and objective criteria for an Obvious Error under 
the Proposed Rule. As noted above, this is designed to give an Official 
the ability to provide parties relief in those situations where they 
have failed to report an apparent error within the established 
notification period. However, the Exchange will only grant relief if 
the transaction meets the requirements for an Obvious Error as 
described in the Proposed Rule.
    The Exchange believes that its proposal to adjust non-Customer 
transactions and to nullify Customer transactions that qualify as 
Obvious Errors is appropriate for reasons consistent with those 
described above. In particular, Customers are not necessarily immersed 
in the day-to-day trading of the markets, are less likely to be 
watching trading activity in a particular option throughout the day, 
and may have limited funds in their trading accounts.
    The Exchange acknowledges that the proposal contains some 
uncertainty regarding whether a trade will be adjusted or nullified, 
depending on whether one of the parties is a Customer, because a party 
may not know whether the other party to a transaction was a Customer at 
the time of entering into the transaction. However, the Exchange 
believes that the proposal nevertheless promotes just and equitable 
principles of trade and protects investors as well as the public 
interest because it eliminates the possibility that a Customer's order 
will be adjusted to a significantly different price. As noted above, 
the Exchange believes it is consistent with the Act to afford Customers 
greater protections under the Proposed Rule than are afforded to non-
Customers. Thus, the Exchange believes that its proposal is consistent 
with the Act in that it protects investors and the public interest by 
providing additional protections to those that are less informed and 
potentially less able to afford an adjustment of a transaction that was 
executed in error. Customers are also less likely to have engaged in 
significant hedging or other trading activity based on earlier 
transactions, and thus, are less in need of maintaining a position at 
an adjusted price than non-Customers.
    If any Member submits requests to the Exchange for review of 
transactions pursuant to the Proposed Rule, and in aggregate that 
Member has 200 or more Customer transactions under review concurrently 
and the orders resulting in such transactions were submitted during the 
course of 2 minutes or less, the Exchange believes it is appropriate 
for the Exchange apply the non-Customer adjustment criteria described 
above to such transactions. The Exchange believes that the proposed 
aggregation is reasonable as it is representative of an extremely large 
number of orders submitted to the Exchange over a relatively short 
period of time that are, in turn, possibly erroneous (and within a time 
frame significantly less than an entire day), and thus is most likely 
to occur because of a systems issue experienced by an Options Member 
representing Customer orders or a systems issue coupled with the 
erroneous marking of orders. The Exchange does not believe it is 
possible at a level of 200 Customer orders over a 2 minute period that 
are under review at one time that multiple, separate Customers were 
responsible for the errors in the ordinary course of trading. In the 
event of a large-scale issue caused by an Options Member that has 
submitted orders over a 2 minute period marked as Customer that 
resulted in more than 200 transactions under review, the Exchange does 
not believe it is appropriate to nullify all such transactions because 
of the negative impact that nullification could have on the market 
participants on the contra-side of such transactions, who might have 
engaged in hedging and trading activity following such transactions. In 
order for a participant to have more than 200 transactions under review 
concurrently when the orders triggering such transactions were received 
in 2 minutes or less, the Exchange believes that a market participant 
will have far exceeded the normal behavior of customers deserving 
protected status. While the Exchange continues to believe that it is 
appropriate to nullify transactions in such a circumstance if both 
participants to a transaction are Customers, the Exchange does not 
believe it is appropriate to place the overall risk of a significant 
number of trade breaks on non-Customers that in the normal course of 
business may have engaged in additional hedging activity or trading 
activity based on such transactions. Thus, the Exchange believes it is 
necessary and appropriate to protect non-Customers in such a 
circumstance by applying the non-Customer adjustment criteria, and thus 
adjusting transactions as set forth above, in the event a Member has 
more than 200 transactions under review concurrently. In summary, due 
to the extreme level at which the proposal is set, the Exchange 
believes that the proposal is consistent with section 6(b)(5) of the 
Act in that it promotes just and equitable principles of trade by 
encouraging market participants to retain appropriate controls over 
their systems to avoid submitting a large number of erroneous orders in 
a short period of time.
    Similarly, the Exchange believes that the proposed Size Adjustment 
Modifier, which would increase the adjustment amount for non-Customer 
transactions, is appropriate because it attempts to account for the 
additional risk that the parties to the trade undertake for 
transactions that are larger in scope. The Exchange believes that the 
Size Adjustment Modifier creates additional incentives to prevent more 
impactful Obvious Errors and it lessens the impact on the contra-party 
to an adjusted trade. The Exchange notes that these contra-parties may 
have preferred to only trade the size involved in the transaction at 
the price at which such trade occurred,

[[Page 77571]]

and in trading larger size has committed a greater level of capital and 
bears a larger hedge risk.
    The Exchange similarly believes that its Proposed Rule with respect 
to Catastrophic Errors is consistent with the Act as it affords 
additional time for market participants to file for review of erroneous 
transactions that were further away from the Theoretical Price. At the 
same time, the Exchange believes that the Proposed Rule is consistent 
with the Act in that it generally would adjust transactions, including 
Customer transactions, because this will protect against hedge risk, 
particularly for transactions that may have occurred several hours 
earlier and thus, which all parties to the transaction might presume 
are protected from further modification. Similarly, by providing larger 
adjustment amounts away from Theoretical Price than are set forth under 
the Obvious Error provision, the Catastrophic Error provision also 
takes into account the possibility that the party that was advantaged 
by the erroneous transaction has already taken actions based on the 
assumption that the transaction would stand. The Exchange believes it 
is reasonable to specifically protect Customers from adjustments 
through their limit prices for the reasons stated above, including that 
Customers are less likely to be watching trading throughout the day and 
that they may have less capital to afford an adjustment price. The 
Exchange believes that the proposal provides a fair process that will 
ensure that Customers are not forced to accept a trade that was 
executed in violation of their limit order price. In contrast, market 
professionals are more likely to have engaged in hedging or other 
trading activity based on earlier trading activity, and thus, are more 
likely to be willing to accept an adjustment rather than a 
nullification to preserve their positions even if such adjustment is to 
a price through their limit price.
    The Exchange believes that proposed rule change to adopt the 
Significant Market Event provision is consistent with section 6(b)(5) 
of the Act in that it will foster cooperation and coordination with 
persons engaged in regulating the options markets. In particular, the 
Exchange believes it is important for options exchanges to coordinate 
when there is a widespread and significant event, as commonly, multiple 
options exchanges are impacted in such an event. Further, while the 
Exchange recognizes that the Proposed Rule will not guarantee a 
consistent result for all market participants on every market, the 
Exchange does believe that it will assist in that outcome. For 
instance, if options exchanges are able to agree as to the time from 
which Theoretical Price should be determined and the period of time 
that should be reviewed, the likely disparity between the Theoretical 
Prices used by such exchanges should be very slight and, in turn, with 
otherwise consistent rules, the results should be similar. The Exchange 
also believes that the Proposed Rule is consistent with the Act in that 
it generally would adjust transactions, including Customer 
transactions, because this will protect against hedge risk, 
particularly for liquidity providers that might have been quoting in 
thousands or tens of thousands of different series and might have 
affected executions throughout such quoted series. The Exchange 
believes that when weighing the competing interests between preferring 
a nullification for a Customer transaction and an adjustment for a 
transaction of a market professional, while nullification is 
appropriate in a typical one-off situation that it is necessary to 
protect liquidity providers in a widespread market event because, 
presumably, they will be the most affected by such an event (in 
contrast to a Customer who, by virtue of their status as such, likely 
would not have more than a small number of affected transactions). The 
Exchange believes that the protection of liquidity providers by 
favoring adjustments in the context of Significant Market Events can 
also benefit Customers indirectly by better enabling liquidity 
providers, which provides a cumulative benefit to the market. Also, as 
stated above with respect to Catastrophic Errors, the Exchange believes 
it is reasonable to specifically protect Customers from adjustments 
through their limit prices for the reasons stated above, including that 
Customers are less likely to be watching trading throughout the day and 
that they may have less capital to afford an adjustment price. The 
Exchange believes that the proposal provides a fair process that will 
ensure that Customers are not forced to accept a trade that was 
executed in violation of their limit order price. In contrast, market 
professionals are more likely to have engaged in hedging or other 
trading activity based on earlier trading activity, and thus, are more 
likely to be willing to accept an adjustment rather than a 
nullification to preserve their positions even if such adjustment is to 
a price through their limit price. In addition, the Exchange believes 
it is important to have the ability to nullify some or all transactions 
arising out of a Significant Market Event in the event timely 
adjustment is not feasible due to the extraordinary nature of the 
situation. In particular, although the Exchange has worked to limit the 
circumstances in which it has to determine Theoretical Price, in a 
widespread event it is possible that hundreds if not thousands of 
series would require an Exchange determination of Theoretical Price. In 
turn, if there are hundreds or thousands of trades in such series, it 
may not be practicable for the Exchange to determine the adjustment 
levels for all non-Customer transactions in a timely fashion, and in 
turn, it would be in the public interest to instead more promptly 
deliver a simple, consistent result of nullification.
    The Exchange believes that proposed rule change related to review, 
nullification and/or adjustment of erroneous transactions during a 
trading halt (including the proposed modification to Rule 20.3), an 
erroneous print in the underlying security, an erroneous quote in the 
underlying security, or an erroneous transaction in the option with 
respect to stop and stop limit orders is likewise consistent with 
section 6(b)(5) of the Act because the proposal provides for the 
adjustment or nullification of trades executed at erroneous prices 
through no fault on the part of the trading participants. Allowing for 
Exchange review in such situations will promote just and fair 
principles of trade by protecting investors from harm that is not of 
their own making. Specifically with respect to the proposed provisions 
governing erroneous prints and quotes in the underlying security, the 
Exchange notes that market participants on the Exchange base the value 
of their quotes and orders on the price of the underlying security. The 
provisions regarding errors in prints and quotes in the underlying 
security cover instances where the information market participants use 
to price options is erroneous through no fault of their own. In these 
instances, market participants have little, if any, chance of pricing 
options accurately. Thus, these provisions are designed to provide 
relief to market participants harmed by such errors in the prints or 
quotes of the underlying security.
    The Exchange believes that the proposed provision related to 
Linkage Trades is consistent with the Act because it adds additional 
transparency to the Proposed Rule and makes clear that when a Linkage 
Trade is adjusted or nullified by another options exchange, the 
Exchange will take necessary actions to complete the nullification or 
adjustment of the Linkage Trade.

[[Page 77572]]

    The Exchange believes that retaining the same appeals process as 
the Exchange maintains under the Current Rule is consistent with the 
Act because such process provides Options Members with due process in 
connection with decisions made by Exchange Officials under the Proposed 
Rule. The Exchange believes that this process provides fair 
representation of Options Members by ensuring diversity amongst the 
members of any Obvious Error Review Panel, which is consistent with 
sections 6(b)(3) and 6(b)(7) of the Act. The Exchange also believes 
that the proposed appeals process is appropriate with respect to 
financial penalties for appeals that result in a decision of the 
Exchange being upheld because it discourages frivolous appeals, thereby 
reducing the possibility of overusing Exchange resources that can 
instead be focused on other, more productive activities. The fees with 
respect to such financial penalties are the same as under the Current 
Rule, and are equitable and not unfairly discriminatory because they 
will be applied uniformly to all Options Members and are designed to 
reduce administrative burden on the Exchange as well as market 
participants that volunteer to participate on Obvious Error Review 
Panels.
    With regard to the portion of the Exchange's proposal related to 
the applicability of the Obvious Error Rule when the underlying 
security is in a Limit or Straddle State, the Exchange believes that 
the proposed rule change is consistent with section 6(b)(5) of the Act 
because it will provide certainty about how errors involving options 
orders and trades will be handled during periods of extraordinary 
volatility in the underlying security. Further, the Exchange believes 
that it is necessary and appropriate in the interest of promoting fair 
and orderly markets to exclude from Rule 20.6 those transactions 
executed during a Limit or Straddle State.
    The Exchange believes the application of the Proposed Rule without 
the proposed provision would be impracticable given the lack of 
reliable NBBO in the options market during Limit and Straddle States, 
and that the resulting actions (i.e., nullified trades or adjusted 
prices) may not be appropriate given market conditions. The Proposed 
Rule change would ensure that limit orders that are filled during a 
Limit State or Straddle State would have certainty of execution in a 
manner that promotes just and equitable principles of trade, removes 
impediments to, and perfects the mechanism of a free and open market 
and a national market system.
    Moreover, given the fact that options prices during brief Limit or 
Straddle States may deviate substantially from those available shortly 
following the Limit or Straddle State, the Exchange believes giving 
market participants time to re-evaluate a transaction would create an 
unreasonable adverse selection opportunity that would discourage 
participants from providing liquidity during Limit or Straddle States. 
In this respect, the Exchange notes that only those orders with a limit 
price will be executed during a Limit or Straddle State. Therefore, on 
balance, the Exchange believes that removing the potential inequity of 
nullifying or adjusting executions occurring during Limit or Straddle 
States outweighs any potential benefits from applying certain 
provisions during such unusual market conditions. Additionally, as 
discussed above, there are additional pre-trade protections in place 
outside of the Obvious and Catastrophic Error Rule that will continue 
to safeguard customers.
    The Exchange notes that under certain limited circumstances the 
Proposed Rule will permit the Exchange to review transactions in 
options that overlay a security that is in a Limit or Straddle State. 
Specifically, an Official will have authority to review a transaction 
on his or her own motion in the interest of maintaining a fair and 
orderly market and for the protection of investors. Furthermore, the 
Exchange will have the authority to adjust or nullify transactions in 
the event of a Significant Market Event, a trading halt in the affected 
option, an erroneous print or quote in the underlying security, or with 
respect to stop and stop limit orders that have been triggered based on 
erroneous trades. The Exchange believes that the safeguards described 
above will protect market participants and will provide the Exchange 
with the flexibility to act when necessary and appropriate to nullify 
or adjust a transaction, while also providing market participants with 
certainty that, under normal circumstances, the trades they effect with 
quotes and/or orders having limit prices will stand irrespective of 
subsequent moves in the underlying security. The right to review those 
transactions that occur during a Limit or Straddle State would allow 
the Exchange to account for unforeseen circumstances that result in 
Obvious or Catastrophic Errors for which a nullification or adjustment 
may be necessary in the interest of maintaining a fair and orderly 
market and for the protection of investors. Similarly, the ability to 
nullify or adjust transactions that occur during a Significant Market 
Event or trading halt, erroneous print or quote in the underlying 
security, or erroneous trade in the option (i.e., stop and stop limit 
orders) may also be necessary in the interest of maintaining a fair and 
orderly market and for the protection of investors. Furthermore, the 
Exchange will administer this provision in a manner that is consistent 
with the principles of the Act and will create and maintain records 
relating to the use of the authority to act on its own motion during a 
Limit or Straddle State or any adjustments or trade breaks based on 
other proposed provisions under the Rule.

B. Self-Regulatory Organization's Statement on Burden on Competition

    BATS believes the entire proposal is consistent with section 
6(b)(8) of the Act \18\ in that it does not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act as explained below.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    Importantly, the Exchange believes the proposal will not impose a 
burden on intermarket competition but will rather alleviate any burden 
on competition because it is the result of a collaborative effort by 
all options exchanges to harmonize and improve the process related to 
the adjustment and nullification of erroneous options transactions. The 
Exchange does not believe that the rules applicable to such process is 
an area where options exchanges should compete, but rather, that all 
options exchanges should have consistent rules to the extent possible. 
Particularly where a market participant trades on several different 
exchanges and an erroneous trade may occur on multiple markets nearly 
simultaneously, the Exchange believes that a participant should have a 
consistent experience with respect to the nullification or adjustment 
of transactions. The Exchange understands that all other options 
exchanges intend to file proposals that are substantially similar to 
this proposal.
    The Exchange does not believe that the proposed rule change imposes 
a burden on intramarket competition because the provisions apply to all 
market participants equally within each participant category (i.e., 
Customers and non-Customers). With respect to competition between 
Customer and non-Customer market participants, the Exchange believes 
that the Proposed Rule acknowledges competing concerns and tries to 
strike the appropriate balance between such concerns. For

[[Page 77573]]

instance, as noted above, the Exchange believes that protection of 
Customers is important due to their direct participation in the options 
markets as well as the fact that they are not, by definition, market 
professionals. At the same time, the Exchange believes due to the 
quote-driven nature of the options markets, the importance of liquidity 
provision in such markets and the risk that liquidity providers bear 
when quoting a large breadth of products that are derivative of 
underlying securities, that the protection of liquidity providers and 
the practice of adjusting transactions rather than nullifying them is 
of critical importance. As described above, the Exchange will apply 
specific and objective criteria to determine whether an erroneous 
transaction has occurred and, if so, how to adjust or nullify a 
transaction.

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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days after 
publication (i) as the Commission may designate if it finds such longer 
period to be appropriate and publishes its reasons for so finding or 
(ii) as to which the self-regulatory organization consents, the 
Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-BATS-2014-067 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BATS-2014-067. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (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 Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-BATS-2014-067 and should be 
submitted on or before January 14, 2015.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-30127 Filed 12-23-14; 8:45 am]
BILLING CODE 8011-01-P

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