[Federal Register: September 16, 2010 (Volume 75, Number 179)]
[Notices]
[Page 56608-56613]
[DOCID:fr16se10-104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62883; File No. SR-FINRA-2010-033]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Approving Proposed Rule Change Relating To
Expanding the Pilot Rule for Trading Pauses Due to Extraordinary Market
Volatility to the Russell 1000[supreg] Index and Specified Exchange
Traded Products

September 10, 2010.

I. Introduction

    On June 30, 2010, the Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) \1\ of the Securities
Exchange Act of 1934 (``Act''),\2\ and Rule 19b-4 thereunder,\3\ a
proposed rule change to amend its rules to expand the trading pause
pilot in individual stocks comprising the S&P 500[supreg] Index (``S&P
500'') when the price moves ten percent or more in the preceding five
minute period to securities included in the Russell 1000[supreg] Index
(``Russell 1000'') and specified Exchange Traded Products
(``ETPs'').\4\ The proposed rule change was published for comment in
the Federal Register on July 7, 2010.\5\ The Commission received 19
comments on the proposal and on broader issues relating to the
effectiveness of the circuit breaker pilot program to date.\6\
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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\ For purposes of Phase II, ETPs consist of exchange-traded
funds (including widely traded broad-based funds like SPY),
exchange-traded vehicles (which track the performance of an asset or
index, providing investors with exposure to futures contracts,
currencies and commodities without actually trading futures or
taking physical delivery of the asset), and exchange-traded notes.
    \5\ See Securities Exchange Act Release No. 62416 (June 30,
2010), 75 FR 39069 (July 7, 2010) (SR-FINRA-2010-033).
    Also on June 30, 2010, each of BATS Exchange, Inc. (``BATS''),
NASDAQ OMX BX, Inc. (``BX''), Chicago Board Options Exchange,
Incorporated (``CBOE''), Chicago Stock Exchange, Inc. (``CHX''),
EDGA Exchange, Inc (``EDGA''), EDGX Exchange, Inc. (``EDGX''),
International Securities Exchange LLC (``ISE''), The NASDAQ Stock
Market LLC (``NASDAQ''), New York Stock Exchange LLC (``NYSE''),
NYSE Amex LLC (``NYSE Amex''), NYSE Arca, Inc. (``NYSE Arca''), and
National Stock Exchange, Inc. (``NSX'') securities exchanges filed
proposed rule changes to expand the pilot program. See Securities
Exchange Act Release Nos. 62407 (June 30, 2010), 75 FR 39060 (July
7, 2010); 62415 (June 30, 2010), 75 FR 39086 (July 7, 2010); 62409
(June 30, 2010), 75 FR 39078 (July 7, 2010); 62408 (June 30, 2010),
75 FR 39065 (July 7, 2010); 62417 (June 30, 2010), 75 FR 39074 (July
7, 2010); 62418 (June 30, 2010), 75 FR 39084 (July 7, 2010); 62419
(June 30, 2010), 75 FR 39070 (July 7, 2010); 62414 (June 30, 2010),
75 FR 39081 (July 7, 2010); 62411 (June 30, 2010), 75 FR 39067 (July
7, 2010); 62412 (June 30, 2010), 75 FR 39073 (July 7, 2010); 62413
(June 30, 2010), 75 FR 39076 (July 7, 2010); and 62410 (June 30,
2010), 75 FR 39063 (July 7, 2010). Those rule changes were approved
today. See Securities Exchange Act Release No. 62884 (September 10,
2010).
    In this order, the term ``Exchanges'' refers collectively to all
of the exchanges. The term ``Listing Markets'' refers collectively
to NYSE, NYSE Amex, NYSE Arca, and NASDAQ. The term ``Nonlisting
Markets'' refers collectively to the remaining national securities
exchanges. The term ``SROs'' refers to the Exchanges and the
Financial Industry Regulatory Authority (``FINRA'').
    \6\ The Commission considered letters received as of August 25
discussing the concept of the effectiveness of the individual stock
circuit breaker pilot to date as well as formal letters citing the
rule filings. See Letter from Paul Schott Stevens, President & CEO,
Investment Company Institute to Chairman Schapiro, Commission, dated
June 22, 2010 (``ICI Letter''); Letter from Craig S. Donohue, CEO,
CME Group, Inc. to Chairman Schapiro, Commission, dated June 23,
2010 (``CME Letter''); Letter from Ann L. Vlcek, Managing Director
and Associate General Counsel, Securities Industry and Financial
Markets Association to Elizabeth M. Murphy, Secretary, Commission,
dated June 25, 2010 (``SIFMA Letter''); Letter from Peter Skopp,
President, Molinete Trading Inc. to Elizabeth M. Murphy, Secretary,
Commission, dated July 8, 2010 (``Molinete Letter''); Letter from
Sal L. Arnuk, Co-Head, and Joseph Saluzzi, Co-Head, Themis Trading
to Elizabeth M. Murphy, Secretary, Commission, dated July 8, 2010
(``Themis Letter''); Letter from Peter A. Ianello, Partner, CSS, LLC
to Elizabeth M. Murphy, Secretary, Commission, dated July 15, 2010
(``CSS Letter''); Letter from Julie S. Sweet, General Counsel,
Secretary, Chief Compliance Officer, Accenture plc to Elizabeth M.
Murphy, Secretary, Commission, dated July 15, 2010 (``Accenture
Letter''); Letter from Patrick J. Healy, CEO, Issuer Advisory Group,
LLC, Washington, District of Columbia to Elizabeth M. Murphy,
Secretary, Commission, dated July 18, 2010 (``Issuer Advisory Group
Letter''); Letter from Alexander M. Cutler, Chair, Business
Roundtable Corporate Leadership Initiative, Business Roundtable, to
Elizabeth M. Murphy, Secretary, Commission, dated July 19, 2010
(``Business Roundtable Letter''); Letter from Geva Patz, Android
Alpha Fund to Elizabeth M. Murphy, Secretary, Commission, dated July
19, 2010 (``Android Alpha Fund Letter''); Letter from David C.
Cushing, Director of Global Equity Trading, Wellington Management
Company, LLP to Elizabeth M. Murphy, Secretary, Commission, dated
July 19, 2010 (``Wellington Letter''); Letter from Karrie McMillan,
General Counsel, Investment Company Institute to Elizabeth M.
Murphy, Secretary, Commission, dated July 19, 2010 (``ICI 2
Letter''); Letter from Ira P. Shapiro, Managing Director, BlackRock,
Inc., San Francisco, California to Elizabeth M. Murphy, Secretary,
Commission, dated July 19, 2010 (``BlackRock Letter''); Letter from
Tom Quaadman, Vice President, Center for Capital Markets
Competitiveness, Washington, District of Columbia to Elizabeth M.
Murphy, Secretary, Commission, dated July 19, 2010 (``CCMC
Letter''); Letter from James J. Angel, Associate Professor of
Finance, Georgetown University, dated June 19, 2010 [sic] (``Angel
Letter''); Letter from John A. McCarthy, General Counsel, GETCO to
Elizabeth M. Murphy, Secretary, Commission, dated July 20, 2010
(``GETCO Letter''); Letter from Jose Marques, Managing Director,
Deutsche Bank Securities Inc. to Elizabeth M. Murphy, Secretary,
Commission, dated July 21, 2010 (``Deutsche Bank Letter''); Letter
from Paul Schott Stevens, President & CEO, Investment Company
Institute to Chairman Schapiro, Commission, dated July 27, 2010
(``ICI 3 Letter''); Letter from Craig S. Donohue, Chief Executive
Officer, CME Group to Elizabeth M. Murphy, Secretary, Commission,
dated July 30, 2010 (CME 2 Letter'').
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    The Commission finds that the proposals are consistent with Section
15A(b)(6) of the Act,\7\ as it believes that expanding the uniform,
market-wide trading pauses will serve to prevent potentially
destabilizing price volatility and will thereby help promote the goals
of investor protection and just and equitable principles of trade. This
order approves the proposed rule change.
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    \7\ 15 U.S.C. 78o-3(b)(6). That section, among other things,
requires that FINRA rules must be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade and in general, to protect investors and the
public interest.
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II. Description of the Proposals

    On May 6, 2010, the U.S. equity markets experienced a severe
disruption.\8\ Among other things, the prices of a large number of
individual securities suddenly declined by significant amounts in a
very short time

period, before suddenly reversing to prices consistent with their pre-
decline levels. This severe price volatility led to a large number of
trades being executed at temporarily depressed prices, including many
that were more than 60% away from pre-decline prices and were broken by
the national securities exchanges. The Commission is concerned that
events such as those that occurred on May 6 can seriously undermine the
integrity of the U.S. securities markets. Accordingly, it is working on
a variety of fronts to assess the causes and contributing factors of
the May 6 market disruption and to fashion policy responses that will
help prevent a recurrence.
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    \8\ The events of May 6 are described more fully in the report
of the staffs of the Commodity Futures Trading Commission (``CFTC'')
and the Commission, titled Report of the CFTC and SEC to the Joint
Advisory Committee on Emerging Regulatory Issues, ``Preliminary
Findings Regarding the Market Events of May 6, 2010,'' dated May 18,
2010 (``Joint Report'').
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    The Commission also recognizes the importance of moving quickly to
implement appropriate steps that could help limit potential harm from
extreme price volatility. In this regard, it is pleased that the SROs
began consulting soon after May 6 in an effort to develop consistent
circuit breaker rules that could be implemented on an expedited basis.
The SROs were able to reach agreement on a consistent approach and, on
May 18 and 19, 2010, all of the SROs filed proposed rule changes with
the Commission.
    On June 10, 2010, the Commission granted accelerated approval, for
a pilot period to end December 10, 2010, for a proposed rule change by
FINRA to pause trading during periods of extraordinary market
volatility in S&P 500 stocks (the ``Phase I Circuit Breaker
Pilot'').\9\ That rule requires FINRA, once a Listing Market issues a
trading pause, to halt trading otherwise than on an exchange in that
security until trading has resumed on the primary listing market.\10\
The Listing Markets are required to notify the other exchanges, market
participants and FINRA of the imposition of a trading pause by
immediately disseminating a special indicator over the consolidated
tape. Under the rules, once the Listing Market issues a trading pause,
FINRA is required to pause trading in the security otherwise than on an
exchange.
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    \9\ See Securities Exchange Act Release No. 62251 (June 10,
2010), 75 FR 34183 (June 16, 2010) (SR-FINRA-2010-025) (``Phase I
Approval Order'').
    \10\ The rules of the Exchanges require the Listing Markets to
issue five-minute trading pauses for individual securities for which
they are the primary Listing Market if the transaction price of the
security moves ten percent or more from a price in the preceding
five-minute period.
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    At the end of the five-minute pause, the Listing Market reopens
trading in the security in accordance with its procedures for doing so.
Trading resumes on other exchanges and in the over-the-counter (OTC)
market once trading has resumed on the Listing Market. In the event of
a significant imbalance on the Listing Market at the end of the trading
pause, the Listing Market may delay reopening. If the Listing Market
has not reopened within ten minutes from the initiation of the trading
pause, however, FINRA will halt trading otherwise than on an exchange
in that security until trading has resumed on the primary Listing
Market. FINRA may permit the resumption of trading if trading has
commenced on at least one other national securities exchange.\11\
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    \11\ For more details on the operation of FINRA's rule, see
Securities Exchange Act Release No. 62251.
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    Several commenters on the proposal for the Phase I Circuit Breaker
Pilot expressed the view that the circuit breaker pilot should be
expanded beyond S&P 500 stocks, particularly to exchange traded funds
(``ETFs'') and the securities of other companies that were most
severely affected by the market disruption on May 6, 2010.\12\ In the
approval order for the Phase I Circuit Breaker Pilot, the Commission
agreed that consideration should be given by the exchanges and FINRA to
whether the circuit breakers should be expanded to cover additional
securities, but did not believe that there was a reason to delay
implementation of the Phase I Circuit Breaker Pilot as a reasonable
first step to address potential market volatility.
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    \12\ See, e.g., Letter from Jeffrey W. Rubin, American Bar
Association Business Law Section to Elizabeth M. Murphy, Secretary,
Commission, dated June 3, 2010; Letter from Julie Sweet, Accenture
plc to Elizabeth M. Murphy, Secretary, Commission, dated June 3,
2010; and Letter from Karrie McMillan, Investment Company Institute
to Elizabeth M. Murphy, Secretary, Commission, dated June 3, 2010
(expressing particular concern that if circuit breakers exist for
individual securities contained in ETFs' baskets, but not for the
ETFs themselves, ETFs could again suffer disproportionately during a
market event such as that of May 6).
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    Under the current proposal, FINRA proposes to add securities
included in the Russell 1000, as well as specified ETPs, to the pilot
(the ``Phase II Circuit Breaker Pilot'') shortly after the Commission
approves the proposed rule changes. FINRA believes that adding these
securities to the pilot would have the beneficial effect of applying
the circuit breakers' protections against excessive volatility to a
larger group of securities, while at the same time allowing the
opportunity, during the pilot period, for continued review of the
operation of the circuit breakers and an assessment of whether the
pilot should be further expanded or modified.
    FINRA believes that the securities in the Russell 1000 have similar
trading characteristics to securities included in the S&P 500, and
therefore the 10% price movement that triggers a trading pause in the
Phase I Circuit Breaker Pilot is appropriate for Russell 1000
securities.
    In addition, FINRA proposed to include in the Phase II Circuit
Breaker Pilot more liquid ETPs--specifically, those with a minimum
average daily volume of $2,000,000--that tend to have similar trading
characteristics as securities in the S&P 500 and Russell 1000 and for
which they believe a 10% circuit breaker trigger is appropriate. To
assure related ETPs are subject to comparable circuit breakers, any
ETPs that did not meet the $2,000,000 average daily volume threshold,
but tracked similar stocks and indices as ETPs meeting this criterion
and included in the pilot, were proposed for inclusion. ETPs with
average-daily-volumes of less than $2,000,000, and for which there were
no high-volume counterparts were not included. Also excluded were
leveraged ETFs since those products by design are more volatile than
the underlying stocks they track, and the current proposal only
contemplates adding securities for which a 10% trigger is appropriate.
    As proposed, the list of ETPs includes those that track broad-based
equity indices, which FINRA recognizes has caused some debate. For
example, as described in Section III, concerns have been raised about
the effect that halting trading in an index-based ETP may have on a
related index-based option or future. However, FINRA believes that
including broad-based index ETPs is appropriate so that ETP investors
are protected should the component securities experience such
volatility that trading in the broad-based ETP is affected. Because the
proposal is for a pilot period, FINRA will continue to assess, among
other things, whether it is appropriate to have a trading pause in
broad-based index ETPs when there is not a similar trading pause in
related index-based options or futures.
    In addition, during the pilot period, FINRA will continue to assess
whether specific stocks or ETPs should be added to, or removed from,
the list of securities subject to the circuit breakers. FINRA will also
continue to assess whether the parameters for invoking a trading pause
continue to be appropriate or should be modified.\13\
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    \13\ See Securities Exchange Act Release No. 62416 (June 30,
2010), 75 FR 39069 (July 7, 2010) (SR-FINRA-2010-033).

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III. Discussion of Comments and Commission Findings

    As of August 25, 2010, the Commission received 19 comment letters
regarding the proposed rule changes. Many commenters supported the
Phase II Circuit Breaker Pilot and its expansion to the Russell 1000
and the specified ETPs.\14\ For example, one commenter encouraged the
Commission to act expeditiously to expand the scope of the trading halt
rules to securities other than the S&P 500, particularly to ETFs, and
noted that ETFs experienced significant volatility on May 6, 2010 and
would benefit from uniform pauses in trading.\15\ Another commenter
urged the Commission to approve the Phase II Circuit Breaker Pilot as
quickly as possible, arguing that many of the securities that
experienced the most extreme trading jolts on May 6, 2010 were not
included in the Phase I Circuit Breaker Pilot, and that expansion of
the pilot was appropriate both to protect additional companies from
potential aberrational price movements and liquidity events affecting
their securities, and to provide investors with greater certainty about
the availability of the circuit breakers.\16\ Yet another commenter
noted that expanding the trading halt pilot to securities in the
Russell 1000 would protect investors in publicly traded companies not
in the S&P 500 that experienced severely aberrational trading on May
6.\17\
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    \14\ See Accenture Letter, Business Roundtable Letter; CCMC
Letter; ICI Letter; ICI 2 Letter; ICI 3 Letter; Issuer Advisory
Group Letter; Wellington Letter; Deutsche Bank Letter; SIFMA Letter;
and BlackRock Letter.
    \15\ See SIFMA Letter.
    \16\ See Business Roundtable Letter.
    \17\ See Accenture Letter.
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    Some commenters raised concerns about the proposed rule changes.
The two main areas of concern were: (1) The ability of erroneous trades
to trigger a trading pause; and (2) whether ETPs--particularly broad-
based index products--should be included in the pilot.

1. Erroneous Trades Triggering the Trading Pause

    Several commenters pointed out that, under the circuit breaker
pilot, erroneous trades can trigger--and have triggered--trading
pauses, when there otherwise is no extraordinary market volatility.\18\
One commenter asserted that under the current circuit breaker logic,
erroneous trades would have triggered a trading halt at least 238 times
in the past 18 months.\19\ This same commenter pointed out that, as of
the date of its letter, three stocks had been halted under the Phase I
Circuit Breaker Pilot, two of which were triggered on markets with
prices that were far away from the current national best bid or offer
(``NBBO'') and prevailing prices at other markets.\20\
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    \18\ See, e.g., Themis Letter; Accenture Letter; Molinete
Letter; SIFMA Letter; and Angel Letter.
    \19\ See Molinete Letter.
    \20\ Id. (referring to the trading pauses in Citigroup on June
29, 2010 and in Anadarko Petroleum on July 6, 2010). As of August
25, stock-specific circuit breakers have been triggered seven times
in six stocks.
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    Other commenters expressed concern that any trader in the world,
ill-intentioned \21\ or not, has the power to halt trading in a stock
simply by printing a trade outside the circuit breaker range on a trade
reporting facility for the OTC market.\22\ One of these commenters
suggested that either a minimum number of trades outside the circuit
breaker range occur before trading is halted, or that the trade first
be checked for consistency with the NBBO before trading is halted.\23\
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    \21\ The Commission notes that anyone reporting a trade with the
intention of triggering a trading pause could be charged with
manipulation, fraud or other violations of the federal securities
laws.
    \22\ See Themis Letter and Angel Letter.
    \23\ Id.
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    Several commenters concerned with erroneous trades triggering the
circuit breakers offered alternatives to the ``trading pause''
mechanism used in the current pilot. A number of commenters suggested
that the Commission consider moving to a ``limit up/limit down''
approach to moderate market volatility, similar to that utilized in the
futures markets.\24\ Some commenters also encouraged the Commission to
consider adopting collars on market orders and eliminating stub
quotes.\25\ One commenter suggested that the markets trigger the single
stock circuit breakers off of changes to the NBBO rather than to
changes in the last trade price.\26\
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    \24\ See SIFMA Letter; Accenture Letter; Wellington Letter; and
CME 2 Letter. Under this approach, trades could occur within the
established price bands, so that erroneous trades would largely be
eliminated. In addition, there would not be a complete trading
halt--trading would be prevented outside the applicable price band,
but could continue within it.
    \25\ See SIFMA Letter and CME 2 Letter.
    \26\ See Molinete Letter. As an alternative, this commenter
suggested requiring at least two consecutive trades outside the NBBO
to trigger the circuit breaker, and the exclusion of manually-
entered trades from being potential triggers.
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    The Commission believes that the ability of an erroneous trade to
trigger a trading pause is a concern that FINRA should seek to address
promptly. The Commission understands that FINRA is working on a variety
of measures to reduce the instances of erroneous trades and to assure
that, when they occur, they are resolved promptly through a clear and
transparent process.\27\ The Commission also notes that, under the
pilot rules, the Listing Market can exclude a transaction price that
results from an erroneous execution from triggering a circuit breaker.
In this regard, the Commission notes that the Listing Markets, pursuant
to this authority, intend to implement automated processes to help
prevent trades that may be erroneous--specifically, those outside the
NBBO--from triggering a circuit breaker.\28\ In addition, the
Commission understands FINRA is developing more effective ways to
prevent erroneous OTC trades from being printed on a trade reporting
facility, and it encourages those efforts as well.\29\ Various
exchanges have taken steps to ``collar'' market orders, which are
intended to prevent executions that occur a specified percentage away
from the last sale,\30\ and Commission staff has been working with
FINRA on an initiative to prevent stub quotes. The Commission, in
conjunction with FINRA, will continue to evaluate what further steps
need to be taken to reduce the likelihood of erroneous trades and to
improve the efficiency of the pilot. However, the Commission does not
believe it is appropriate to delay implementation of the Phase II
Circuit Breaker Pilot pending the conclusion of those efforts.
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    \27\ See SR-BATS-2010-016; SR-BX-2010-040; SR-CBOE-2010-056; SR-
CHX-2010-13; SR-EDGA-2010-03; SR-EDGX-2010-03; SR-FINRA-2010-032;
SR-ISE-2010-62; SR-NASDAQ-2010-076; SR-NSX-2010-07; SR-NYSE-2010-47;
SR-NYSEAmex-2010-60; SR-NYSEArca-2010-58 (proposed rule changes to
amend certain SRO rules to set forth clearer standards and curtail
SRO discretion with respect to breaking erroneous trades).
    \28\ See Letter from Janet M. Kissane, Senior Vice President--
Legal & Corporate Secretary, NYSE Euronext to Elizabeth M. Murphy,
Secretary, Commission, dated August 25, 2010; Letter from Thomas P.
Moran, Associate General Counsel, The NASDAQ Stock Market LLC to
Elizabeth M. Murphy, Secretary, Commission, dated August 26, 2010.
The Listing Markets may roll out these new automated processes on a
staggered basis.
    \29\ See, e.g., FINRA Trade Reporting Notice, dated August 19,
2010 (issuing new guidance on the use of the weighted-average price/
special pricing formula (.W) trade modifier for reporting certain
types of OTC trades in NMS stocks to FINRA).
    \30\ See, e.g., Securities Exchange Act Release Nos. 62485 (July
13, 2010), 75 FR 41914 (July 19, 2010) (SR-NYSEArca-2010-67); 60371
(July 23, 2009), 74 FR 38075 (July 30, 2009) (SR-NASDAQ-2009-70).
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2. Inclusion of ETPs

    Many commenters addressed the inclusion of ETPs in the pilot
program.\31\ Several supported the proposed expansion of the Phase II

Circuit Breaker Pilot to include ETPs.\32\ One of these commenters
stated that ETFs experienced significant volatility on May 6, and would
benefit from a uniform trading pause.\33\ Another commenter noted that
the price of an ETF is typically highly correlated to the market price
of its basket of component securities.\34\ Under normal circumstances,
when trading has been halted for one or two component securities, an
ETF may experience a slight deviation from the price of its basket
because of the challenge of pricing the non-trading security, and may
trade with a wider spread to account for the associated risk. When
multiple underlying securities are affected, however, the correlation
between the prices of an ETF and its underlying basket may break down
and the ETF may experience more severe price dislocation.\35\ While
this commenter thought that a different circuit breaker trigger may be
appropriate for ETFs, it nonetheless encouraged the Commission to
include all ETFs in the pilot where a substantial number of the
component securities are subject to the circuit breakers.\36\ Doing
otherwise, in its view, creates risks that ETFs could again suffer
disproportionately during a market event similar to that of May 6.\37\
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    \31\ See Accenture Letter; Android Alpha Fund Letter; BlackRock
Letter; Business Roundtable Letter; CME Letter; CME 2 Letter; CCMC
Letter; ICI Letter; ICI 2 Letter; ICI 3 Letter; Molinete Letter;
SIFMA Letter.
    \32\ See Accenture Letter; BlackRock Letter; Business Roundtable
Letter; CCMC Letter; ICI Letter; ICI 2 Letter; ICI 3 Letter; SIFMA
Letter.
    \33\ See SIFMA Letter at 2.
    \34\ See ICI Letter and ICI 2 Letter.
    \35\ Id.
    \36\ See ICI Letter. In a subsequent letter, that commenter
supported examining the connection between price discovery in the
equities and the futures markets, and potentially making rules
consistent across markets. See ICI 2 Letter. According to this
commenter, however, such an examination should not prevent including
broad-based index ETFs in the pilot program. Id.
    \37\ See ICI 2 Letter.
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    One commenter supported the inclusion of ETFs in the pilot program,
in part because halting trading in the underlying component securities,
but not in the ETF, would hinder the arbitrage mechanism that is
critical to the ability of ETFs to track the performance of their
underlying basket or benchmark index.\38\ According to this commenter,
if an ETF were allowed to continue to trade while trading in the
majority of its underlying securities were halted, the arbitrage
mechanism would not work effectively, with the result that liquidity
for the ETF would diminish greatly, and perhaps lead to a collapse in
price similar to that which occurred on May 6.\39\
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    \38\ See BlackRock Letter. According to the commenter, this
arbitrage mechanism generally requires liquidity providers to sell a
basket of stocks equivalent to an ETF's underlying portfolio (or a
correlated derivative) as a hedge when purchasing ETF shares.
    \39\ Id. This commenter did, however, question the exclusion of
lower-volume ETFs from the Phase II Circuit Breaker Pilot, and urged
that these ETFs be included in the pilot at the earliest
opportunity. See discussion on pages 6-7 describing the rationale
for selecting the list of ETPs for inclusion in the pilot program.
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    Other commenters criticized various aspects of the application of
the proposed rule change to ETPs. One commenter described certain
ETFs--such as the S&P 500 SPDR (SPY)--as ``systemically important,''
and expressed concern that halting trading in these ETFs, especially as
a result of erroneous trades, might destabilize markets. Because the
SPY, for example, is used as a hedging vehicle in many trading
strategies, halting trading in it could cause liquidity providers
broadly to withdraw from the market, increasing volatility and perhaps
leading to a chain reaction like that witnessed on May 6.\40\ This
commenter did not believe that allowing ETFs to continue to trade while
some of the underlying component securities were halted would be
detrimental, because market participants would determine their own fair
value of the halted component securities.\41\
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    \40\ See Molinete Letter at 4.
    \41\ Id. at 4-5.
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    Another commenter expressed significant concern with the proposed
expansion of the pilot to broad-based equity index ETFs, as it believed
there could be potentially significant disruptions to trading across
related markets.\42\ This commenter noted that the indices underlying
the most active ETFs are the same as those underlying the most active
cash index options, index futures, and options on ETFs.\43\ If a
different circuit breaker mechanism applied to broad-based equity index
ETFs and ETF options than applied to index futures and index options,
or differed from the overall market-wide circuit breakers, the
commenter feared this could lead to further market stress during
periods of turbulence, perhaps impeding liquidity and exacerbating risk
management challenges.\44\ In addition, the commenter thought that the
inability of market makers to hedge using equity index ETFs during a
trading pause could lead to their withdrawing liquidity across all
markets, including in the E-mini index futures.\45\ Accordingly, the
commenter believed that the circuit breakers applicable to equity
index-based ETFs (as well as index futures, index options, options on
ETFs, and swaps) should be consistent with both the methodology and
levels of the market-wide circuit breakers.\46\ Specifically, the
commenter recommended the adoption of uniform price limits across all
broad-based index products based upon the S&P 500, the DJIA, and the
NASDAQ 100, which would preclude trading beyond the enumerated limit
but not within it.\47\ This commenter also recommended that automated
risk and volatility mitigation mechanisms be implemented in place of
trading halts in individual securities.\48\
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    \42\ See CME Letter and CME 2 Letter. This commenter expressed
further concerns with the prospect of multiple constituent stocks in
an index being halted without the market-wide circuit breaker being
triggered. The commenter thought this would create complexity and
confusion in understanding the index calculation. In addition, the
commenter was of the view that the halting of high capitalization,
highly-liquid index components would be disruptive because it could
affect whether the index triggers a market-wide circuit breaker, the
intra-day index values circulated for risk management purposes may
not be reflective of the true value of the underlying market, and
large liquidity providers in index futures and ETFs may have
difficulty hedging with the result that they withdraw from the
market.
    \43\ Id. The commenter also noted that these markets are very
closely linked and the absence of effective coordination across
comparable markets was one factor cited by many as having
contributed to certain market issues experienced on May 6. The
Commission addresses issues of cross-market linkage in its
discussion infra.
    \44\ Id.
    \45\ CME Letter.
    \46\ CME Letter. This commenter also noted that, while
approximately 70% of the trades broken on May 6, 2010 were in ETFs,
they were not in the most liquid domestic, large cap index products.
    \47\ CME 2 Letter. These price limits would be established at
the 5%, 10% and 20% levels, and would be implemented for a 10 minute
period, after which trading would continue to the next applicable
limit.
    \48\ Id. Specifically, the commenter recommended that all
markets adopt: (1) automated means--similar to the commenter's stop
logic functionality--to briefly pause the market in the event that
cascading sell orders precipitate a material market decline because
of a transitory dearth of liquidity; (2) functionality--similar to
the commenter's protection point functionality--to automatically
apply limit prices to all orders, including market and stop orders;
and (3) automated price banding functionality and maximum order size
restrictions to help prevent erroneous trades. For as long as single
stock circuit breakers continue to be employed, however, the
commenter believed regulators and the markets should establish
uniform policies and procedures to address situations where the
computation of the market-wide circuit breaker index value is
negatively affected due to the triggering of stock specific circuit
breakers on the component securities.
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    The Commission believes that, on balance, the inclusion of ETPs,
including broad-based index equity ETFs, in the Phase II Circuit
Breaker Pilot is warranted and consistent with the Act. The Commission
notes that there are a number of scenarios in which the application of
a circuit breaker to trading in an ETF would promote market stability.
For example, if an ETF triggers a circuit breaker when none of its
component stocks is

experiencing abnormal moves, then it is likely that the ETF is
suffering from a temporary liquidity imbalance. In that case, the ETF
would no longer be suitable for use as a hedging instrument since its
price would no longer reflect an accurate consensus market value of the
ETF or its underlying stocks. By pausing the ETF under these
circumstances, the Exchanges would allow liquidity to rebuild and
provide time for the market to self-correct without allowing the
aberrant price of the ETF to adversely affect the trading and pricing
of the underlying stocks, other ETFs or other related products.
    In another scenario, an ETF might trigger a circuit breaker, even
though its component stocks have not, because the ETF is leading its
underlying stocks in price discovery. In that case, the prices of many
of the underlying stocks may follow, triggering their own circuit
breakers shortly after the ETF does. In a broad market event such as
this, the net result would be that trading in the ETF and individual
stocks have each been paused, providing time for the market as a whole
to re-evaluate prices.
    In yet another scenario, a number of individual component stocks
might trigger their circuit breakers even though the related ETF has
not yet done so. In that case, different market participants may very
well have differing opinions on the market value for the ETF because
they will be required to estimate the value of those component stocks
that have been paused. If only a small number of component stocks is
paused (perhaps due to some temporary liquidity imbalances in those
stocks) then there likely would be minimal effect on the ETF, and the
ETF circuit breakers appropriately would not be triggered. But if a
large number of component stocks trigger halts, the market likely is
experiencing a broad-based move, either for fundamental reasons, or
because of a large-scale liquidity imbalance similar to that of May 6.
As noted above, if many component stocks of an ETF are paused, but the
ETF itself continues to trade, the arbitrage relationship between the
ETF and its component stocks likely will break down as market
participants find they cannot hedge their exposures and, as a
consequence, cease to provide liquidity. Without a circuit breaker
mechanism that also applies to ETFs, the ETF could experience excessive
volatility that is not necessarily driven by the prices of its
underlying stocks. By pausing the ETF, market participants would be
given time to re-evaluate prices and replenish liquidity as needed.
    The Commission acknowledges that a variety of ETFs do indeed trade
without incident when most, and sometimes all, of their underlying
components are not trading (e.g., ETFs on international stocks).
However, market makers and other participants trading these ETFs
account for this known and permanent structural difference by building
alternative methods for hedging and pricing into their trading models.
Market participants trading ETFs for which the component stocks
normally trade at the same time would not necessarily have the
opportunity to implement new hedging and pricing strategies in real
time if underlying component stocks were suddenly paused. Rather, they
would most likely withdraw from the market leaving the ETF with little
liquidity and even further need for a trading pause.\49\
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    \49\ The Commission notes that a pause in the ETF could also
affect trading in underlying component stocks that were not
otherwise halted to the extent that the ETF was no longer available
as a hedging mechanism.
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    The above arguments demonstrating the need to couple pauses in ETFs
with pauses in underlying stocks are equally applicable to the futures
market, and the Commission acknowledges the comments and concerns of
the CME for consistent treatment across instrument types. However, the
Commission notes that the CME's markets already have mechanisms for
limiting or pausing trading, and thus some inconsistency exists today
between the two markets. Maintaining the status quo, moreover, would
leave ETFs without a trading pause mechanism. In addition, the
Commission notes that there will need to be substantial work to
determine how best to make the volatility constraints in the futures
markets and the securities markets consistent.
    Commenters have also raised related concerns that a pause in a
broad-based ETF (such as the SPY) could lead to significant liquidity
pressures on other index-based products in the futures market (such as
the E-mini).\50\ Although this is a potential point of concern, as
noted above, the futures markets already have in place volatility
mechanisms that should help mitigate the effect of such an event.
Moreover, it should be noted that currently there could be a pause on
the futures market (e.g., in the E-mini) which could create liquidity
pressure for corresponding ETFs--but there is currently no mechanism to
protect the ETF against aberrant prices as a result of such liquidity
pressures.
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    \50\ See CME Letter.
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    In response to the comment that the Commission instead implement
automated risk and volatility mitigation mechanisms--such as price
banding or stop logic functionality--the Commission notes that, even as
the circuit breaker pilot is being expanded, the Commission is
simultaneously exploring possible alternatives to a circuit breaker
approach that may include price limit bands or other mechanisms
described by the commenters.
    One commenter noted that the proposal would exclude many ETFs with
trading volumes below the criteria set by FINRA, although such ETFs
were significantly affected in the cancelled trades of May 6.\51\ The
Commission acknowledges that fact, but notes that, as FINRA has
indicated, the potential application of the circuit breakers to less
liquid securities is more complex, as different triggering thresholds
may be appropriate for them. As the pilot progresses, the Commission
will work with FINRA to consider expanding the circuit breakers to
cover additional securities in an appropriate manner.
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    \51\ See BlackRock Letter.
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    The Commission acknowledges the point made by commenters that
broad-based index products were not significantly implicated in the
cancelled trades on May 6.\52\ However, the Commission notes that
broad-based index products did experience substantial volatility on May
6 \53\ and, like other securities, could benefit from the protections
of a circuit breaker. In addition, a sudden change in price, due to a
loss of liquidity or otherwise, to a widely traded ETF could have an
adverse market-wide effect even more far-reaching than that of May 6.
It is important that the use of circuit breakers not be limited to only
those ETFs that happened to have experienced severe dislocations on May
6, since there is no fundamental reason why broad-based ETFs could not
experience a similar liquidity crisis. In addition, there were no
circuit breakers in effect for underlying stocks on May 6. If a similar
event occurred when many underlying stocks in an index were halted by
circuit breakers, broad-based ETFs could experience greater volatility
than occurred on May 6.
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    \52\ See CME Letter.
    \53\ See Joint Report, supra note 8, at 39 (noting that many
ETFs ``experienced extreme daily lows'' on May 6, and that a
``significant number of ETFs'' experienced extreme daily highs on
May 6).
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3. Other Areas of Comment

    Other areas of comment included potential ways to expand or modify
the circuit breaker pilot going forward,\54\ the

need to carefully study the effect of the pilot,\55\ the effect and
continued advisability of individual market volatility moderators in
addition to the uniform single-stock circuit breakers,\56\ and possible
modifications to the market-wide circuit breakers.\57\
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    \54\ See Angel Letter (recommending that the trading pause be
expanded to cover the open, close, and after-hours trading); ICI
Letter (recommending examining whether a different circuit breaker
trigger is appropriate for ETFs); Wellington Letter (recommending
that the Commission require the Exchanges to continuously disclose
the high/low trigger of a security and its maximum remaining life).
    \55\ See Android Alpha Fund Letter.
    \56\ See Deutsche Bank Letter.
    \57\ See CME 2 Letter; SIFMA Letter.
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    With regard to expanding or modifying the circuit breaker pilot, as
noted above, the Commission intends to continue working with FINRA to
consider expanding the pilot to include additional securities, or
modifying the circuit breaker mechanism or pursuing other approaches to
moderating market volatility, in the coming months. In addition, as
noted in the Joint Report, the Commission currently is evaluating the
extent to which individual market volatility moderators exacerbated the
market instability that occurred on May 6, 2010, and expects to develop
appropriate policy recommendations based on the outcome of that
analysis. Finally, as noted in the Joint Report, the Commission intends
to work with the CFTC to consider whether modifications to the existing
market-wide circuit breakers are warranted in light of the events of
May 6. While all of these issues warrant further study in the coming
months, the Commission does not believe they provide a basis for not
approving the Phase II Circuit Breaker Pilot at this time. The fact
that better alternatives to address inordinate market volatility
ultimately may be developed does not provide a basis for the Commission
not to approve FINRA's proposal if, as the Commission believes, the
proposed rule change is consistent with Section 15A(b)(6) of the Act.

4. Findings

    The Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder applicable to a national securities association. In
particular, the Commission finds that the proposal is consistent with
the provisions of Section 15A(b)(6) of the Act,\58\ which requires,
among other things, that FINRA rules must be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade and, in general, to protect investors and
the public interest.\59\
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    \58\ 15 U.S.C. 78o-3(b)(6).
    \59\ In approving the proposed rule change, the Commission notes
that it has considered the proposed rule's impact on efficiency,
competition, and capital formation. 15 U.S.C. 78c(f).
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    The proposed rule changes will expand the trading pause pilot to
include the securities in the Russell 1000 and specified ETPs. The
Commission believes that expanding the uniform, market-wide trading
pauses will serve to prevent potentially destabilizing price volatility
and will thereby help promote the goals of investor protection and fair
and orderly markets.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\60\ that the proposed rule change (SR-FINRA-2010-033) be, and
hereby is, approved.
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    \60\ 15 U.S.C. 78s(b)(2).

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-23073 Filed 9-15-10; 8:45 am]
BILLING CODE 8010-01-P