Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Chapter V, Section 6, 27801-27816 [2015-11593]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 80, Number 93 (Thursday, May 14, 2015)]
[Notices]
[Pages 27801-27816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11593]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74915; File No. SR-NASDAQ-2015-054]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Chapter V, Section 6

May 8, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on May 7, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend Chapter V, Regulation of Trading on

[[Page 27802]]

NOM, Section 6, to replace current Section 6 (``Current Rule''), 
entitled ``Obvious and Catastrophic Errors,'' with new Section 6 
(``Proposed Rule''), entitled ``Nullification and Adjustment of Options 
Transactions including Obvious Errors.'' Section 6 relates to the 
adjustment and nullification of options transactions that occur on The 
NASDAQ Options Market (``NOM'').
    The text of the proposed rule change is available on the Exchange's 
Web site at https://nasdaq.cchwallstreet.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 aspects 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 
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

[[Page 27803]]

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.\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.
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    \3\ The term ``Professional'' means any person or entity that 
(i) is not a broker or dealer in securities, and (ii) places more 
than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s). See Chapter I, 
Section 1(a)(48).
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    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 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 new term, ``Official,'' to 
apply only to Section 6. Specifically, the term ``Official'' shall mean 
an Exchange staff member or contract employee designated as such by the 
Chief Regulatory Officer. A list of individual Officials shall be 
displayed on the Exchange Web site. The Chief Regulatory Officer shall 
maintain the list of Officials and update the Web site each time a name 
is added to, or deleted from, the list of Officials. In the event no 
Official is available to rule on a particular matter, the Chief 
Regulatory Officer or his/her designee shall rule on such matter.
    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 transactions 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.
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    \4\ See 17 CFR 240.10b-18(a)(5)(ii).
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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

[[Page 27804]]

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 last NBB and last NBO just prior to the trade in 
question would be the last NBB and last NBO just prior to the 
Exchange's receipt of the order.
    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 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 
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.
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    \5\ See, e.g., NYSE Arca Options Rule 6.37(b)(1).
    \6\ See, e.g., Chapter VII, Section 12, which requires certain 
orders to be exposed 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).
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    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.

[[Page 27805]]

Transactions at the Open
    Under the Proposed Rule, for a transaction occurring as part of the 
opening \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.
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    \7\ See Chapter VI, Section 8 for a description of the 
Exchange's opening process.
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    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 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:

------------------------------------------------------------------------
                                                               Minimum
                     Theoretical price                          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 an 
Official in the manner specified from time to time by the Exchange in a 
notice distributed to Participants. 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 Exchange Officer 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 
Exchange Officer the ability to

[[Page 27806]]

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 Exchange Officer 
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 Exchange Officer to act as soon as possible after 
becoming aware of the transaction; action by the Exchange Officer 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 Exchange Officer 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 Exchange 
Officer'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 Exchange 
Officer not to review a transaction or determination not to nullify or 
adjust a transaction for which a review was conducted on an Exchange 
Officer'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 Exchange Officer.
    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 transaction    Sell transaction
      Theoretical Price (TP)         adjustment-- TP    adjustment-- TP
                                           plus              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 [sic] submits requests to the Exchange for 
review of transactions pursuant to the Proposed Rule, and in aggregate 
that Participant 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

[[Page 27807]]

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 Participant 
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 Participant 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:

------------------------------------------------------------------------
                                                               Minimum
                     Theoretical price                          amount
------------------------------------------------------------------------
Below $2.00................................................        $0.50
$2.00 to $5.00.............................................         1.00
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 Official 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 an Official 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 Official in the manner specified from time to time by the Exchange 
in a notice distributed to Participants. 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 transaction    Sell transaction
      Theoretical price (TP)         adjustment-- TP    adjustment-- TP
                                           plus              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

[[Page 27808]]

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\ 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 exceeded 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 of $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 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 $100,000,000 are potentially erroneous;
    (D) 10,000 transactions are potentially erroneous.
    As described above, the Exchange proposes to adopt a the 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 equals or 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 equal or 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

[[Page 27809]]

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 Participant 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 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 Significant Market Event 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 Section 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 transaction    Sell transaction
      Theoretical price (TP)         adjustment-- TP    adjustment-- TP
                                           plus              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

[[Page 27810]]

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 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 Participant 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 Participant 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
    Chapter V, Section 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 Section 6. 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 adopt Commentary .03 to Section 6 to state 
that the Exchange will nullify any transaction that occurs: (a) During 
a trading halt in the affected option on the Exchange; (b) with respect 
to equity options (including options overlying ETFs), during a trading 
halt on the primary listing market for the underlying security; or (c) 
respecting index options, the trade occurred during a trading halt on 
the primary market in underlying securities representing more than 10 
percent of the current index value for stock index options. Currently, 
the Exchange's rules do not directly address nullification during a 
trading halt. Accordingly, and for consistency with other exchanges' 
rules, the Exchange proposes to adopt this provision.
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 Official 
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 Official 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

[[Page 27811]]

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 Official 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 Official in accordance with the notification provisions of 
the Obvious Error provision described above. The Proposed Rule, 
therefore, puts the onus on each Participant to notify the Exchange if 
such Participant 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 
Participants. 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 Participant 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 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.
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 Options Order Protection and Locked/
Crossed Market 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 
Participant and The Options Clearing Corporation (``OCC'') of the 
adjustment or nullification. Thus, the Exchange believes that the 
proposed provision adds additional transparency to the Proposed Rule.
---------------------------------------------------------------------------

    \11\ See Chapter XII, Section 1(17).
---------------------------------------------------------------------------

Appeals
    The Exchange proposes to maintain its current appeals process in 
connection with the Proposed Rule. Specifically, a party to a 
transaction affected by a decision made under this section may appeal 
that decision to the Nasdaq Review Council. An appeal must be made in 
writing, and must be received by the Exchange within thirty (30) 
minutes after the person making the appeal is given the notification of 
the determination being appealed. The Nasdaq Review Council may review 
any decision appealed, including whether a complaint was timely, 
whether an Obvious Error or Catastrophic Error occurred, whether the 
correct Theoretical Price was used, and whether an adjustment was made 
at the correct price.
    In order to maintain a diverse group of participants, the Nasdaq 
Review Council panel will continue be comprised minimally of 
representatives of one (1) member engaged in Market Making and two (2) 
industry representatives not engaged in Market Making. At no time 
should a review panel have more than 50% members engaged in Market 
Making. To assure fairness, members of the Nasdaq Review Council, like 
all members of Board Committees, are subject to a conflict of interest 
prohibition.\12\
---------------------------------------------------------------------------

    \12\ See By-Law Article III, Section 7.
---------------------------------------------------------------------------

No Adjustments to a Worse Price
    Finally, the Exchange proposes to include Commentary .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.
Limit Up-Limit Down Plan
    The Exchange proposes to amend Section 3(d)(iv) to reflect the 
numbering and content of the Proposed Rule. It will then continue to 
cover how the Exchange will treat Obvious and Catastrophic Errors in 
response to the Regulation NMS Plan to Address Extraordinary Market 
Volatility

[[Page 27812]]

Pursuant to Rule 608 of Regulation NMS under the Act (the ``Limit Up-
Limit Down Plan'' or the ``Plan),\13\ which is applicable to all NMS 
stocks, as defined in Regulation NMS Rule 600(b)(47).\14\
---------------------------------------------------------------------------

    \13\ Securities Exchange Act Release No. 67091 (May 31, 2012), 
77 FR 33498 (June 6, 2012).
    \14\ 17 CFR 242.600(b)(47).
---------------------------------------------------------------------------

Implementation Date
    In order to ensure that other options exchanges are able to adopt 
rules consistent with this proposal and to coordinate the effectiveness 
of such harmonized rules, the Exchange proposes to delay the operative 
date of this proposal to May 8, 2015.
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 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 
Participants, 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 Participant 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 Commentary .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 Officials is appropriate in 
the absence of a reliable NBBO that can be used to set the Theoretical 
Price.

[[Page 27813]]

    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 
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, 
Participants 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 Participant submits requests to the Exchange for review of 
transactions pursuant to the Proposed Rule, and in aggregate that 
Participant 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 
a Participant 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 Participant 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

[[Page 27814]]

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 Participant 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, 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 an 
erroneous print in the underlying security or an erroneous quote in the 
underlying security 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

[[Page 27815]]

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.
    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 Participants with due process in 
connection with decisions made by Officials under the Proposed Rule. 
The Exchange believes that this process provides fair representation of 
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.

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

    NASDAQ 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 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

    No written comments were either solicited or received.

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

    Because the proposed rule change does not (i) significantly affect 
the protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative for 30 
days from the date on which it was filed, or such shorter time as the 
Commission may designate if consistent with the protection of investors 
and the public interest, the proposed rule change has become effective 
pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-4(f)(6) 
thereunder.\20\
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and the text of the proposed rule change, at least 
five business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission.
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the 30-day operative 
delay so that the proposal may become operative immediately upon 
filing. The Commission believes that waiving the 30-day operative delay 
is consistent with the protection of investors and the public interest, 
as it will enable the Exchange to meet its proposed implementation date 
of May 8, 2015, which will help facilitate the implementation of 
harmonized rules related to the adjustment and nullification of 
erroneous options transactions across the options exchanges. For this 
reason, the Commission designates the proposed rule change to be 
operative upon filing.\21\
---------------------------------------------------------------------------

    \21\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is 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 to 
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or

[[Page 27816]]

     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2015-054 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-NASDAQ-2015-054. 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 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; 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-NASDAQ-2015-054, and should 
be submitted on or before June 4, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-11593 Filed 5-13-15; 8:45 am]
BILLING CODE 8011-01-P