
[Federal Register: October 8, 2009 (Volume 74, Number 194)]
[Notices]               
[Page 51906-51910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc09-99]                         


[[Page 51906]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60761; File No. SR-ISE-2009-73]

 
Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change and Amendment No. 1 Thereto Relating to Clearly Erroneous 
Executions

October 1, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on September 28, 2009, the International Securities Exchange, LLC 
(``Exchange'' or ``ISE'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
On October 1, 2009, the ISE filed Amendment No. 1 to the proposed rule 
change. The ISE has designated the proposed rule change as constituting 
a rule change under Rule 19b-4(f)(6) under the Act,\3\ which renders 
the proposal effective upon filing with the Commission. The Commission 
is publishing this notice to solicit comments on the proposed rule 
change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 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 ISE proposes to amend ISE Rule 2128 governing clearly erroneous 
executions.

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

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

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

1. Purpose
    The Exchange proposes to amend ISE Rule 2128 by replacing the 
current rule text, in its entirety, with newly proposed rule text in 
order to improve the Exchange's policies and procedures regarding 
clearly erroneous executions. The newly proposed rule text is part of a 
market-wide effort designed to provide transparency and finality with 
respect to clearly erroneous executions. This effort seeks to achieve 
consistent results for participants across U.S. equities exchanges 
while maintaining a fair and orderly market, protecting investors and 
protecting the public interest. This proposed rule change shall be 
effective on October 5, 2009. The proposed rule text is more fully 
discussed below.
Definition
    The Exchange proposes to adopt a definition of a clearly erroneous 
execution and adopt language addressing cancelled trades. The proposed 
rule text states that a transaction is ``clearly erroneous'' when there 
is an obvious error in any term, such as price, number of shares or 
other unit of trading, or identification of the security. The proposed 
rule text also states that a transaction made in clearly erroneous 
error and agreed to be canceled by both parties or determined by the 
Exchange to be clearly erroneous will be removed ``from the 
Consolidated Tape.'' \4\ A trade will only be removed from the 
Consolidated Tape when the determination is deemed final and any 
applicable appeals have been exhausted.
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    \4\ For purposes of this Rule, ``removed from the Consolidate 
Tape'' means that a subsequent message will be sent to the 
Consolidated Tape indicating that a previously executed trade has 
been cancelled.
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Equity Electronic Access Member Initiated Review Requests
    In ISE Rule 2128(b), the Exchange proposes procedures for 
requesting a review of a clearly erroneous transaction. First, the 
proposed rule would require that requests for review be made only by 
electronic mail (``e-mail'') or other electronic means specified from 
time to time by the Exchange. Requiring requests for review to be made 
via e-mail creates a standard format that can easily be logged and 
tracked. The Exchange will publish the email address or other 
electronic means to be used for all clearly erroneous filings in a 
circular distributed to Equity Electronic Access Members (``Equity 
EAMs'').
    The Exchange further proposes that requests for review must be 
received by the Exchange within 30 minutes of the execution time for 
orders initially routed to and executed on the Exchange. The Exchange 
proposes that Equity EAMs submit certain essential identifying 
information with the request including the time of the transaction(s), 
security symbol(s), number of shares, price(s), side (bought or sold), 
and factual basis for believing that the trade is clearly erroneous. 
The Exchange believes that 30 minutes is an appropriate time frame that 
offers the requesting party sufficient time to gather and submit all 
required information.
    The proposed rule also requires the Exchange to notify the 
counterparty to a trade upon receipt of a timely filed request for 
review that satisfies the numerical guidelines set forth within the 
Rule. The Exchange proposes to adopt language allowing an Officer of 
the Exchange or such other employee designee (``Officer'') of ISE to 
request additional information from each party to a transaction under 
review. Parties to the review will have 30 minutes from the time of the 
request to provide additional supporting information.
Routed Executions
    The Exchange proposes to give other market centers an additional 30 
minutes from the receipt of their participant's timely filing to 
request a ruling, but no longer than 60 minutes from the time of the 
execution under review. This provision accounts for those executions 
initially directed to an away market center and subsequently routed by 
that away market center to the Exchange.
    For example, assume an order is initially routed by a participant 
to Market Center A and subsequently routed to ISE where the order is 
executed at a price outside of the Numerical Guidelines. This provision 
generally requires Market Center A to file with the Exchange within 30 
minutes from the time it receives its participant's timely filed 
request for review. This provision caps the filing deadline for an away 
market center at 60 minutes from the time of the execution under 
review.
Threshold Factors
    The Exchange proposes adding certain numerical thresholds to the 
Rule that explicitly state what constitutes a clearly erroneous 
execution.
Numerical Guidelines
    The proposed numerical guidelines state that a transaction executed 
during

[[Page 51907]]

the Regular Market Session \5\ or the Pre-Market Session \6\ and Post-
Market Session \7\ may be found to be clearly erroneous only if the 
price of the transaction to buy is greater, or less in the case of a 
sale, than the reference price by an amount that equals or exceeds the 
numerical guidelines for a particular transaction category. The 
Reference Price shall be equal to the Consolidated Last Sale 
immediately prior to the execution under review, unless unusual 
circumstances are present. The proposed guidelines for sales greater 
than $0.00 and up to and including $25.00 are 10% for the Regular 
Market Session and 20% for the Pre-Market Session and Post-Market 
Sessions. The proposed guidelines for sales greater than $25.00 and up 
to and including $50.00 are 5% for the Regular Market Session and 10% 
for Pre-Market Session and Post-Market Sessions. The proposed 
guidelines for sales greater than $50.00 are 3% for the Regular Market 
Session and 6% for Pre-Market Session and Post-Market Sessions. A 
filing involving five or more securities by the same Equity EAM will be 
aggregated into a single filing called a ``Multi-Stock Event.'' In the 
case of a Multi-Stock Event, the proposed guidelines are 10% for the 
Regular Market Session and 10% for the Pre-Market Session and Post-
Market Sessions. In the case of Leveraged ETF/ETN securities, the above 
guidelines are to be multiplied by the leverage multiplier of the 
security. Executions that do not meet or exceed the Numerical 
Guidelines will not be eligible for review under this section. The 
following chart summarizes the proposed Numerical Guidelines.
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    \5\ The Regular Market Session begins for each security with the 
Opening Transaction, as defined in Rule 2106, and continues until 
the primary listing market closes such security. See ISE Rule 
2102(b) and (c).
    \6\ The Pre-Market Session begins at 8 a.m. and concludes with 
the Opening Transaction of a security. See ISE Rule 2102(a).
    \7\ The Post-Market Session begins following the conclusion of 
the Regular Market Session and concludes at 8 p.m. See ISE Rule 
2102(d).

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                                  Regular market
                                session numerical    Pre-market session
                                    guidelines        and post-market
                                     (subject        session numerical
 Reference price: Consolidated    transaction's     guidelines (subject
           last sale                 percent       transaction's percent
                                 difference from    difference from the
                                 the consolidated    consolidated last
                                   last sale):             sale):
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Greater than $0.00 and up to    10%..............  20%.
 and including $25.00.
Greater than $25.00 and up to   5%...............  10%.
 and including $50.00.
Greater than $50.00...........  3%...............  6%.
Multi-Stock Event--Filings      10%..............  10%.
 involving five or more
 securities by the same Equity
 EAM will be aggregated into a
 single filing.
Leveraged ETF/ETN securities..  Regular Market     Regular Market
                                 Session            Session Numerical
                                 Numerical          Guidelines
                                 Guidelines         multiplied by the
                                 multiplied by      leverage multiplier
                                 the leverage       (i.e. 2x).
                                 multiplier (i.e.
                                 2x).
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    Establishing Numerical Guidelines within the Rule brings regulatory 
transparency and consistency in the application of the rules of the 
Exchange. These Numerical Guidelines represent the general consensus 
approach and were developed based on the collective experiences of a 
market-wide group. The Exchange believes that the Thresholds 
established are fair and appropriate and apply evenly to all 
participants.
Unusual Circumstances
    ISE further proposes that in Unusual Circumstances the Exchange 
may, in its discretion and with a view toward maintaining a fair and 
orderly market, use a Reference Price other than the consolidated last 
sale. Unusual Circumstances may include periods of extreme market 
volatility, sustained illiquidity, or widespread system issues. Other 
Reference Prices that the Exchange may use would include the 
consolidated inside price, the consolidated opening price, the 
consolidated prior close, or the consolidated last sale prior to a 
series of executions.
    The following example explains the use of a Reference Price equal 
to the consolidated last sale prior to a series of executions.
    ABC has a consolidated last sale of $10.00. During the Regular 
Market Session Customer A enters a market order to buy 10,000 shares, 
although it had intended a market order for 1,000 shares. The size of 
the order is such that the order sweeps the ISE Book, which reflects 
1,000 shares of liquidity offered at each of following prices. 
Executions occur, moving through the depth of Book, as follows:

Trade 1--1,000 shares @ $10.00 (9,000 remaining)
Trade 2--1,000 shares @ $10.20 (8,000 remaining)
Trade 3--1,000 shares @ $10.40 (7,000 remaining)
Trade 4--1,000 shares @ $10.60 (6,000 remaining)
Trade 5--1,000 shares @ $10.80 (5,000 remaining)
Trade 6--1,000 shares @ $11.00 (4,000 remaining)
Trade 7--1,000 shares @ $11.20 (3,000 remaining)
Trade 8--1,000 shares @ $11.40 (2,000 remaining)
Trade 9--1,000 shares @ $11.60 (1,000 remaining)
Trade 10--1,000 shares @ $11.80 (complete)

    Thus, to be eligible for review, a transaction must be at a price 
that is at least 10% higher than the consolidated last sale prior to 
the series of executions. Customer A could request a ruling for trades 
6 through 10, priced at $11.00 and above, but trades 
1 through 5 would not be eligible for review.
    Under the proposed rule the Exchange may also use a higher 
numerical guideline if, after market participants have been alerted to 
erroneous activity, the price of the security returns toward its prior 
trading range but continues to trade beyond the price it would have 
normally been busted.
Joint Market Rulings
    In the interest of achieving consistency across markets, the 
Exchange proposes that, in events that involve other markets, the 
Exchange would have the ability to use a different Reference Price and/
or Numerical Guideline. In these instances the Reference Price would be 
determined based on a consensus among the Exchanges where the 
transactions occurred. Furthermore, when a ruling is made across 
markets, the Exchange may

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determine that the ruling is not eligible for appeal because immediate 
finality is necessary to maintain a fair and orderly market and to 
protect investors and the public interest.
Additional Factors
    The proposed amendments to ISE Rule 2128 also enumerate some 
additional factors that an Officer may consider when determining 
whether an execution is clearly erroneous. These factors include, but 
are not limited to, system malfunctions or disruptions, volume and 
volatility for the security, derivative securities products that 
correspond to greater than 100% in the direction of a tracking index, 
news released for the security, whether trading in the security was 
recently halted/resumed, whether the security is an IPO, whether the 
security was subject to a stock-split, reorganization, or other 
corporate action, overall market conditions, Pre-Market and Post-Market 
Session executions, validity of the consolidated tapes trades and 
quotes, consideration of primary market indications, and executions 
inconsistent with the trading pattern in the stock. Each additional 
factor shall be considered with a view toward maintaining a fair and 
orderly market, the protection of investors and the public interest.
Numerical Guidelines Applicable to Volatile Market Opens
    The Exchange proposes to expand the Numerical Guidelines applicable 
to transactions occurring between 9:30 a.m. and 10 a.m. based on the 
disseminated value of the S&P 500 Futures at 9:15 a.m. When the S&P 
Futures are up or down from 3% to up to but not including 5% at 9:15 
a.m., the Numerical Guidelines are doubled. When the S&P Futures are up 
or down 5% or greater at 9:15 a.m., the Numerical Guidelines are 
tripled. The Exchange believes that the S&P 500 futures contract is an 
appropriate and reliable barometer of market activity prior to the 
market opening due to its broad based market coverage and deep 
liquidity. By using the S&P 500 Futures disseminated value at 9:15 a.m. 
as the barometer of market activity, the Exchange is providing a 
transparent means of offering adjusted guidelines in times of volatile 
market activity.
Outlier Transactions
    The proposed amendments to ISE Rule 2128 provide that an Officer of 
the Exchange may consider requests for review received after thirty 
minutes, but not longer than sixty minutes after the execution in 
question in the case of an Outlier Transaction. An Outlier Transaction 
is a transaction where, (1) The execution price of the security is 
greater than three times the current Numerical Guidelines, or (2) the 
execution price of the security breaches the 52-week high or low, in 
which case the Exchange may consider Additional Factors to determine if 
the transaction qualifies for review or if the Exchange shall decline 
to act.
Review Procedures
Initial Determination
    Under the proposed rule, the Officer will only have the authority 
to break the trades or rule to let the trades stand and will no longer 
have the authority to adjust one or more terms of the transaction. This 
limitation attempts to remove the subjectivity from the rule that is 
necessitated by an adjustment.
    The Exchange also proposes adding language stating that a 
determination shall be made generally within 30 minutes of receipt of 
the complaint, but in no case later than the start of the Regular 
Market Session on the following trading day. Rulings made outside of 30 
minutes by an Officer will not fail for lack of timeliness. The 
guideline simply provides participants an appropriate expectation that 
a ruling will generally be made within 30 minutes, and in no case later 
than the start of the Regular Market Session on the following trading 
day.
Appeals
    The Exchange proposes to amend the appeals procedure for trades 
that are deemed to be clearly erroneous. First, the Exchange will no 
longer accept appeal requests via facsimile. Similar to the proposed 
language for an initial request for a ruling, all appeal requests must 
be made via e-mail.
    The current rule provides that the Exchange shall review and render 
a decision upon an appeal within a timeframe provided by the Exchange. 
The proposed rule offers more definite guidelines to ensure the 
expedient resolution of appeals. It requires the Exchange to review 
appeals as soon as practicable, but generally on the same day as the 
executions under review. Appeals received between 3 p.m. ET and the 
close of trading in the Post-Market Session should be made as soon as 
practicable, but in no case later than the trading day following the 
date of the execution under review. Appeals will not fail for lack of 
timeliness. This revised provision provides participants a reasonable 
expectation of when a ruling on appeal will generally be made.
    Further, the proposed rule declares that any determination made by 
an Officer or by the CEE Panel shall be rendered without prejudice as 
to the right of the parties to the transaction to submit their dispute 
to arbitration. This provision simply clarifies the fact that nothing 
in the proposed rule limits or impedes the rights of the parties to 
arbitrate their dispute.
System Disruption and Malfunctions
    Currently, within the System Disruptions and Malfunctions section 
of the rule, after an Officer determines that a trade was clearly 
erroneous he may declare the transaction null and void or modify the 
trade to attempt to achieve and equitable rectification of the error. 
The proposed Rule eliminates the Exchange's ability to modify a clearly 
erroneous execution. The Exchange must either uphold or nullify the 
execution based upon the findings of the Officer reviewing the 
execution.
    The proposed Rule provides that, in the event of a disruption or a 
malfunction, an Officer of the Exchange or other senior level employee 
designee will rely on the proposed numerical guidelines in determining 
whether an execution is clearly erroneous. However, the Officer or 
senior level employee may also use a lower Numerical Guideline if 
necessary to maintain a fair and orderly market, protect investors, and 
protect the public interest. The proposed rule also adds that actions 
taken under these circumstances must be taken within 30 minutes of 
detection of the erroneous transaction in the ordinary case, and by no 
later than the start of the Regular Market Session on the day following 
the date of the execution under review when extraordinary circumstances 
exist.
Officers Acting on Their Own Motion
    The Exchange proposes to add a section to the Rule that will grant 
an Officer of the Exchange or other senior level employee designee the 
ability to act on their own motion to review potentially erroneous 
executions. Under the current rule, Officers have the ability to act 
upon their own motion only in the event of a system disruption or 
malfunction. The proposed rule would allow an Officer of the Exchange 
or other senior level employee designee to review executions and rely 
on the Numerical Guidelines, under any circumstance. In extraordinary 
circumstances an Officer of the Exchange or other senior level employee 
designee may apply a lower Numerical Guideline if it is determined that 
such action is necessary to maintain a fair and orderly market or 
protect investors and the public interest. In some instances the 
Exchange may detect a

[[Page 51909]]

single execution that breaches the Numerical Guidelines but is not the 
subject of a ruling request. This provision gives the Exchange the 
ability to review such executions. Additionally, in practice clearly 
erroneous executions commonly involve multiple parties and multiple 
executions. In such instances, all affected parties may not request a 
ruling. The Exchange proposes this provision to permit an Officer of 
the Exchange or other senior level employee designee to rule on a group 
of transactions related to the same occurrence or event as a whole, 
without a formal request for a ruling from every affected party.
Trade Nullification for UTP Securities that are Subject of Initial 
Public Offerings
    The proposed rule also modifies ISE's policy on trade nullification 
and for UTP securities that are subject to initial public offerings. 
Under the proposed rule, an Officer of the Exchange or other senior 
level employee designee must either declare an opening transaction null 
and void or decline to take action, but can no longer be adjusted. 
Furthermore, the proposed rule requires that, in extraordinary 
circumstances, the reviewing Officer of the Exchange or other senior 
level employee designee may take action by no later than the start of 
the Regular Market Session on the day following the date of the 
execution under review.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Act,\8\ in general, and 
furthers the objectives of Section 6(b)(4),\9\ in particular, in that 
it is designed to provide for the equitable allocation of reasonable 
dues, fees and other charges among its members and other persons using 
its facilities. The proposed rule change provides transparency and 
finality for Equity EAMs and creates consistent results across U.S. 
equities exchanges with respect to clearly erroneous executions. This 
proposed change further promotes the maintenance of a fair and orderly 
market, the protection of investors and the protection of the public 
interest.
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    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from members or other interested 
parties.

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

    Because the foregoing 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, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \10\ and Rule 19b-
4(f)(6) thereunder.\11\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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 satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \12\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6) \13\ permits the Commission to 
designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange requests 
that the Commission waive the 30-day operative delay so that it may 
implement the new rule on October 5, 2009, the same date as the other 
equities exchanges. The Commission believes that waiving the 30-day 
operative delay is consistent with the protection of investors and the 
public interest because it will allow the Exchange to begin applying 
the new rule on the same date as the other equities exchanges.\14\ 
Application of the new rule on this date should help foster 
transparency and consistency among those exchanges that adopt clearly 
erroneous execution rules substantially similar to those previously 
approved by the Commission.\15\ For these reasons, the Commission 
designates that the proposed rule change, as amended, become operative 
on October 5, 2009.
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    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposal's impact on efficiency, 
competition, and capital formation. 15 U.S.C. 78c(f).
    \15\ See Securities Exchange Act Release No. 60706 (September 
22, 2009) 74 FR 49416 (September 28, 2009) (NYSEArca-2009-36).
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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.\16\
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    \16\ The Commission considers the 60-day period within which the 
Commission may summarily abrogate the proposal pursuant to Section 
19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C), to commence on 
October 1, 2009, the date ISE filed Amendment No. 1 to the proposal.
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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-ISE-2009-73 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-ISE-2009-73. 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.

[[Page 51910]]

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 publicly available. All submissions 
should refer to File Number SR-ISE-2009-73 and should be submitted on 
or before October 29, 2009.
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    \17\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-24250 Filed 10-7-09; 8:45 am]

BILLING CODE 8011-01-P
