
[Federal Register: February 9, 2009 (Volume 74, Number 25)]
[Notices]               
[Page 6444-6447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe09-72]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59345; File No. SR-NYSE-2009-10]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC 
Amending NYSE Rules 116 and 123C To Create a Single Closing Print To Be 
Reported to the Consolidated Tape for Each Security

February 3, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on January 30, 2009, New York Stock Exchange LLC (``NYSE'' 
or the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the self-regulatory 
organization. NYSE filed the proposed rule change pursuant to Section 
19(b)(3)(A) of the Act \4\ and Rule 19b-4(f)(6) thereunder,\5\ which 
renders it

[[Page 6445]]

effective upon filing with the Commission. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend NYSE Rules 116 (``Stop'' Constitutes 
Guarantee) and 123C (Market On The Close Policy And Expiration 
Procedures) to create a single closing print to be reported to the 
Consolidated Tape for each security.
    The text of the proposed rule change is available at http://
www.nyse.com, the Exchange, and the Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    Through this filing the Exchange seeks to amend NYSE Rules 116 and 
123C to create a single closing print to be reported to the 
Consolidated Tape for each security.
Current Reporting of Closing Transactions
    NYSE Rules 116.40 and 123C prescribe, inter alia, the procedures 
for the execution of the entry of market at-the-close (``MOC'') and 
limit at-the-close (``LOC'') orders \6\ and the determination of the 
closing print(s) to be reported to the Consolidated Tape for each 
security at the close of trading.
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    \6\ In the NYSE Rules and for the purposes of this discussion, 
the terms ``market-on-close'' and ``limit-on-close'' are used 
interchangeably with ``market-at-the-close'' and ``limit-at-the-
close''.
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    Pursuant to NYSE Rule 123C market participants may enter an MOC 
order to have that order executed as part of the closing transaction at 
the price of the close.\7\ Similar to a market order, an MOC order is 
to be executed in its entirety at the closing price; however, if the 
order is not executed as a result of a trading halt or because of its 
terms (e.g., buy minus or sell plus), the MOC order is cancelled.\8\
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    \7\ See NYSE Rule 123C(1).
    \8\ See Id.
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    Market participants that seek to have their orders executed on the 
close but are sensitive to price may, pursuant to NYSE Rule 123C, enter 
LOC orders that will be eligible for execution in the closing 
transaction, provided that the closing price is at or within the limit 
specified.\9\ An LOC order is not guaranteed an execution in the 
closing transaction; rather, only an LOC order with a limit price that 
is better \10\ than the closing price in the subject security is 
guaranteed an execution.\11\ An LOC order limited at the closing price 
is sequenced with other LOC orders on the NYSE Display Book[supreg] 
\12\ (``Display Book'') in time priority and will be available for 
execution after all other orders on the Display Book at the closing 
price are executed regardless of when such other orders are 
received.\13\
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    \9\ See NYSE Rule 123C(2).
    \10\ As used herein, better than the closing price means an 
order that is lower than the bid in the case of an order to sell or 
higher than the offer in the case of an order to buy.
    \11\ It should be noted that orders are cancelled if there is a 
trading halt in the security that is not lifted prior to the close 
of trading.
    \12\ The Display Book system is an order management and 
execution facility. The Display Book system receives and displays 
orders to the DMM, contains the Book, and provides a mechanism to 
execute and report transactions and publish results to the 
Consolidated Tape. The Display Book system is connected to a number 
of other Exchange systems for the purposes of comparison, 
surveillance, and reporting information to customers and other 
market data and national market systems.
    \13\ See NYSE Rule 123C(2).
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    Pursuant to NYSE Rule 123C(5), at 3:40 p.m. if a security has a 
disparity between MOC and marketable LOC interest to buy and MOC and 
marketable LOC interest to sell of 50,000 shares or more the assigned 
DMM is required to send a message from Display Book that is published 
to the Consolidated Tape informing the investing public of the 
disparity (``Mandatory Indication''). The Mandatory Indication includes 
the symbol, the amount and the side of the imbalance. In addition, to 
the Mandatory Indication, a DMM may, with Floor Official approval, 
disseminate an imbalance publication that is for a disparity of less 
than 50,000 shares when the imbalance in the security is significant in 
relation to the average daily trading volume in the security. At 3:50 
p.m. the DMM is required to provide an update of the previous imbalance 
publications.
    At the close of trading, any closing imbalance of MOC and 
marketable LOC orders are calculated by netting (i.e., pairing off) the 
aggregate amount of MOC and marketable LOC buy orders against the 
aggregate amount of MOC and marketable LOC sell orders.\14\ Exchange 
systems calculate the number of MOC and marketable LOC orders on each 
side of the market and pair them off. Where there is an imbalance (i.e. 
more orders to buy than sell or vice versa), the shares constituting 
the imbalance are executed against the offer (in case of a buy 
imbalance) or the bid (in the case of a sell imbalance).\15\ This 
transaction is reflected on the first closing print from the NYSE to 
the Consolidated Tape for the particular security.\16\ The DMM then 
pairs off the remaining MOC and marketable LOC buy and sell orders 
against each other at the price at which the imbalanced shares were 
executed.\17\ This ``pair off'' transaction is reported as a second 
closing print from the NYSE to the Consolidated Tape as ``stopped 
stock.'' \18\
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    \14\ See NYSE Rules 116.40 and 123C(3).
    \15\ See NYSE Rules 116.40(B) and 123C(3)(A).
    \16\ See Id.
    \17\ See NYSE Rule 123C(3)(A).
    \18\ See NYSE Rules 116.40(C) and 123C(3)(A).
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    If there is no imbalance, the aggregate buy and sell MOC and 
marketable LOC orders are paired off at the price of the last sale of 
the subject security on the Exchange prior to the close of trading in 
the security.\19\ This transaction is reported to the Consolidated Tape 
in a single closing print as ``stopped stock.'' \20\
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    \19\ See NYSE Rules 116.40(C) and 123C(3)(B).
    \20\ See Id.
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Proposed Single Closing Print
    The closing transaction on the Exchange continues to be a manual 
auction in order to facilitate greater price discovery and allow for 
the maximum interaction between market participants. Currently, 
increased volatility in the market has given rise to the need to 
simplify procedures. In order to continue to provide timely closing of 
securities, the Exchange believes that it is necessary to reduce the 
manual processing required of the DMM to promote an even more efficient 
close. As such, the Exchange seeks to create a single closing print to 
be reported to the Consolidated Tape for each security. The Exchange 
believes that this will work to optimize the efficient operation of the 
closing process.
    The Exchange therefore proposes to amend NYSE Rules 116 and 123C(3) 
to

[[Page 6446]]

provide for a single closing print to be reported to the Consolidated 
Tape system for each listed security. Currently, the DMM is required to 
manually enter the imbalance and the paired prints to Exchange systems 
for reporting to the Consolidated Tape. Requiring two prints impedes 
DMMs' efficiency in reporting the closing transaction.
    Multiple closing prints were used to provide information about the 
share imbalances that impacted the closing price of a security on the 
Exchange. In May 2008, the Exchange amended NYSE Rule 123C to allow 
Exchange systems to disseminate a data feed of real-time order 
imbalances that accumulate prior to the close of trading on the 
Exchange (``Order Imbalance Information'').\21\ Order Imbalance 
Information is supplemental information disseminated by the Exchange 
prior to a closing transaction.\22\ Specifically, Order Imbalance 
Information is disseminated every fifteen seconds between 3:40 p.m. and 
3:50 p.m.; thereafter, it is disseminated every five seconds between 
3:50 p.m. and 4 p.m. On any day that the scheduled close of trading on 
the Exchange is earlier than 4 p.m., the dissemination of Order 
Imbalance Information commences 20 minutes before the scheduled closing 
time. On those days, Order Imbalance Information is disseminated every 
fifteen seconds for approximately 10 minutes; thereafter, the Order 
Imbalance Information is disseminated ever [sic] five seconds until the 
scheduled closing time.
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    \21\ See Securities Exchange Act Release Nos. 57862 (May 23, 
2008), 73 FR 31174 (May 30, 2008) (SR-NYSE-2008-41) and 57861 (May 
23, 2008), 73 FR 31905 (June 4, 2008) (SR-NYSE-2008-42). On December 
19, 2008, the Exchange filed with the Securities and Exchange 
Commission to offer, for a separate fee, the Order Imbalance 
Information datafeed as a stand alone market data product. See 
Securities Exchange Act Release No. 59202 (January 6, 2009) 74 FR 
1744 (January 13, 2009) (SR-NYSE-2008-132).
    \22\ See NYSE Rule 123C(6).
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    The Exchange believes that the Order Imbalance Information achieves 
the goal of providing real-time detail and transparency for market 
participants about the factors that impact the closing price of a 
security. The Exchange further notes that the current imbalance 
publications pursuant to NYSE Rule 123C(5) will continue to be 
disseminated in accordance with the provisions of the rule. As such, 
the Exchange believes that there no longer exists a need for the 
dissemination of two separate prints at the close.
    The Exchange therefore proposes that the imbalance, if any, paired 
off closing transactions and stop orders elected for execution on the 
close be reported to the Consolidated Tape System as a single 
transaction and print.\23\ The Exchange proposes to amend the text of 
NYSE Rule 116.40(C) to remove language that states that ``pair off'' 
transactions should be printed to the Consolidated Tape as stopped 
stock. Similarly, the Exchange proposes to amend NYSE Rule 123C(3) 
(Closing Prints) to state that the imbalance and the pair off amounts 
shall be printed to the Consolidated Tape as a single transaction.
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    \23\ The Exchange formally eliminated the percentage orders 
(referred to as a ``CAP'' order) as a valid order type on the NYSE. 
See Securities Exchange Act Release No. 58013 (June 24, 2008), 73 FR 
37521 (July 1, 2008) (SR-NYSE-2008-46) [sic].
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    Pursuant to the above proposed changes, a single print close in a 
security would occur as described in the example below.

    The DMM for stock XYZ has determined that the closing price in 
the stock will be $30.25. The last sale price on the Exchange was 
$30.00. The DMM has 6,000,000 shares of MOC and marketable LOC buy 
orders up to a price of $30.25. On the sell side, there are 
5,000,000 MOC and marketable LOC sell orders down to a price of 
$30.24. The DMM pairs 5,000,000 shares of MOC and marketable LOC buy 
orders against the 5,000,000 shares of MOC and marketable LOC sell 
orders at a price of $30.25, leaving an imbalance of 1,000,000 
shares on the buy side. On the Display Book, the DMM has 700,000 
shares of limit sell orders at various prices marketable up to a 
price of $30.25, and there is also Crowd interest of 300,000 shares 
at that price. The DMM will use the 700,000 shares of limit sell 
orders on the Display Book and 300,000 shares of Crowd interest to 
offset the remaining 1,000,000 shares of MOC and marketable buy LOC 
imbalance.

    In the above example, the DMM would continue to arrange the closing 
transaction as set forth in 123C(3) and NYSE Rule 116.40; however, 
rather than reporting two separate closing prints to the Consolidated 
Tape, a single closing print reflecting the execution of 6,000,000 
shares at $30.25 would be reported. The 6,000,000 share volume in the 
single print close includes: (1) The 1,000,000 share buy order 
imbalance; and (2) the 5,000,000 shares of MOC and marketable LOC buy 
and sell orders that were paired off.
    The Exchange believes that the consolidation of the separate 
closing transactions and prints will reduce the amount of manual 
information to be reported by the DMM thus increasing the speed and 
efficiency of the closing process ultimately improving the quality of 
the Exchange market with timelier reporting of closing transactions.
Proposed Technical Amendment to NYSE Rule 123C(3)
    On October 24, 2008, the Commission approved the operation of a 
pilot for the Exchange's New Market Model.\24\ As part of its new 
model, the Exchange rescinded percentage orders as a valid order type 
on the Exchange. As part of the New Market Model filing, the Exchange 
inadvertently failed to eliminate a reference to percentage orders in 
NYSE Rule 123C(3). The Exchange therefore seeks to correct this 
oversight by deleting that reference through this filing given that 
percentage orders are no longer valid order types on the Exchange.
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    \24\ See Securities Exchange Act Release No. 58845 (October 24, 
2008), 73 FR 64379 (October 29, 2008) (SR-NYSE-2008-46) (approving 
certain rules to operate as a pilot scheduled to end October 1, 
2009).
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Proposed Changes to NYSE Alternext Rules
    The Exchange notes that parallel changes are proposed to be made to 
the rules of the NYSE Alternext Exchange (formerly the American Stock 
Exchange) through a separate filing to be submitted on a later date.
Operative Date
    The Exchange proposes that the amendments herein will be operative 
as of February 6, 2009.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Securities Exchange Act of 1934 (the ``Act''),\25\ in 
general, and furthers the objectives of Section 6(b)(5) of the Act,\26\ 
in particular, in that it is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system, and, in 
general, to protect investors and the public interest. The Exchange 
believes the proposed rule change will facilitate the timely and 
efficient closing of securities on the Exchange and thus ultimately 
serve to protect investors and the public interest.
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    \25\ 15 U.S.C. 78f(b).
    \26\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

[[Page 6447]]

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

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

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

    Because the foregoing proposed rule change: (1) Does not 
significantly affect the protection of investors or the public 
interest; (2) does not impose any significant burden on competition; 
and (3) by its terms, does not become operative for 30 days after the 
date of filing, 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 \27\ and Rule 19b-4(f)(6) thereunder.\28\
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    \27\ 15 U.S.C. 78s(b)(3)(A).
    \28\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative for 30 days after the date of filing.\29\ However, 
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter 
time if such action is consistent with the protection of investors and 
the public interest. The Exchange requested that the Commission waive 
the 30-day operative delay, as specified in Rule 19b-4(f)(6)(iii),\30\ 
and has proposed to make the rule change operative as of February 6, 
2009.
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    \29\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the self-regulatory organization to give the 
Commission notice of its intent to file the proposed rule change, 
along with a brief description and 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. NYSE has satisfied this requirement.
    \30\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because doing so will enable the Exchange to immediately implement a 
more efficient closing process, thereby providing for timelier 
reporting of the closing transaction. Additionally, the Commission 
notes that the Exchange will continue to publish the Mandatory 
Indication when there is a significant imbalance before the close, as 
required under Rule 123C(5). Accordingly, the Commission designates the 
proposed rule change as operative as of February 6, 2009.\31\
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    \31\ For purposes only of waiving the operative delay for this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate 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.\32\
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    \32\ 15 U.S.C. 78s(b)(3)(C).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2009-10 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2009-10. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 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-NYSE-2009-10 and should be 
submitted on or before March 2, 2009.
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    \33\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\33\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-2650 Filed 2-6-09; 8:45 am]

BILLING CODE 8011-01-P
