81 FR 67038 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a Rule To Prohibit Disruptive Quoting and Trading Activity and Allow the Exchange To Take Prompt Action

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 189 (September 29, 2016)

[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Notices]
[Pages 67038-67044]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23498]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78920; File No. SR-ISE-2016-21]


Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change To Adopt a Rule To Prohibit Disruptive Quoting and Trading 
Activity and Allow the Exchange To Take Prompt Action

September 23, 2016.
    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 15, 2016, the International Securities Exchange, LLC 
(``ISE'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I and II below, which Items have been prepared by 
the Exchange. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to adopt a new rule to clearly prohibit 
disruptive quoting and trading activity on the Exchange, as further 
described below. Further the Exchange proposes to amend Exchange Rules 
to permit the Exchange to take prompt action to suspend Members or 
their clients that violate such rule.
    The text of the proposed rule change is available on the Exchange's 
Web site at www.ise.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

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

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

[[Page 67039]]

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

1. Purpose
    The Exchange is filing this proposal to adopt a new rule to clearly 
prohibit disruptive quoting and trading activity on the Exchange and to 
amend Exchange Rules to permit the Exchange to take prompt action to 
suspend Members or their clients that violate such rule.
Background
    As a national securities exchange registered pursuant to Section 6 
of the Act, the Exchange is required to be organized and to have the 
capacity to enforce compliance by its members and persons associated 
with its members, with the Act, the rules and regulations thereunder, 
and the Exchange's Rules. Further, the Exchange's Rules are required to 
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.'' \3\ In 
fulfilling these requirements, the Exchange has developed a 
comprehensive regulatory program that includes automated surveillance 
of trading activity that is both operated directly by Exchange staff 
and by staff of the Financial Industry Regulatory Authority (``FINRA'') 
pursuant to a Regulatory Services Agreement (``RSA''). When disruptive 
and potentially manipulative or improper quoting and trading activity 
is identified, the Exchange or FINRA (acting as an agent of the 
Exchange) conducts an investigation into the activity, requesting 
additional information from the Member or Members involved. To the 
extent violations of the Act, the rules and regulations thereunder, or 
Exchange Rules have been identified and confirmed, the Exchange or 
FINRA as its agent will commence the enforcement process, which might 
result in, among other things, a censure, a requirement to take certain 
remedial actions, one or more restrictions on future business 
activities, a monetary fine, or even a temporary or permanent ban from 
the securities industry.
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    \3\ 15 U.S.C. 78f(b)(1).
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    The process described above, from the identification of disruptive 
and potentially manipulative or improper quoting and trading activity 
to a final resolution of the matter, can often take several years. The 
Exchange believes that this time period is generally necessary and 
appropriate to afford the subject Member adequate due process, 
particularly in complex cases. However, as described below, the 
Exchange believes that there are certain obvious and uncomplicated 
cases of disruptive and manipulative behavior or cases where the 
potential harm to investors is so large that the Exchange should have 
the authority to initiate an expedited suspension proceeding in order 
to stop the behavior from continuing on the Exchange.
    In recent years, several cases have been brought and resolved by 
the Exchange and other SROs that involved allegations of wide-spread 
market manipulation, much of which was ultimately being conducted by 
foreign persons and entities using relatively rudimentary technology to 
access the markets and over which the Exchange and other SROs had no 
direct jurisdiction. In each case, the conduct involved a pattern of 
disruptive quoting and trading activity indicative of manipulative 
layering \4\ or spoofing.\5\ The Exchange and other SROs were able to 
identify the disruptive quoting and trading activity in real-time or 
near real-time; nonetheless, in accordance with Exchange Rules and the 
Act, the Members responsible for such conduct or responsible for their 
customers' conduct were allowed to continue the disruptive quoting and 
trading activity on the Exchange and other exchanges during the 
entirety of the subsequent lengthy investigation and enforcement 
process. The Exchange believes that it should have the authority to 
initiate an expedited suspension proceeding in order to stop the 
behavior from continuing on the Exchange if a Member is engaging in or 
facilitating disruptive quoting and trading activity and the Member has 
received sufficient notice with an opportunity to respond, but such 
activity has not ceased.
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    \4\ ``Layering'' is a form of market manipulation in which 
multiple, non-bona fide limit orders are entered on one side of the 
market at various price levels in order to create the appearance of 
a change in the levels of supply and demand, thereby artificially 
moving the price of the security. An order is then executed on the 
opposite side of the market at the artificially created price, and 
the non-bona fide orders are cancelled.
    \5\ ``Spoofing'' is a form of market manipulation that involves 
the market manipulator placing non-bona fide orders that are 
intended to trigger some type of market movement and/or response 
from other market participants, from which the market manipulator 
might benefit by trading bona fide orders.
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    The following two examples are instructive on the Exchange's 
rationale for the proposed rule change.
    In July 2012, Biremis Corp. (formerly Swift Trade Securities USA, 
Inc.) (the ``Firm'') and its CEO were barred from the industry for, 
among other things, supervisory violations related to a failure by the 
Firm to detect and prevent disruptive and allegedly manipulative 
trading activities, including layering, short sale violations, and 
anti-money laundering violations.\6\ The Firm's sole business was to 
provide trade execution services via a proprietary day trading platform 
and order management system to day traders located in foreign 
jurisdictions. Thus, the disruptive and allegedly manipulative trading 
activity introduced by the Firm to U.S. markets originated directly or 
indirectly from foreign clients of the Firm. The pattern of disruptive 
and allegedly manipulative quoting and trading activity was widespread 
across multiple exchanges, and the Exchange, FINRA, and other SROs 
identified clear patterns of the behavior in 2007 and 2008. Although 
the Firm and its principals were on notice of the disruptive and 
allegedly manipulative quoting and trading activity that was occurring, 
the Firm took little to no action to attempt to supervise or prevent 
such quoting and trading activity until at least 2009. Even when it put 
some controls in place, they were deficient and the pattern of 
disruptive and allegedly manipulative trading activity continued to 
occur. As noted above, the final resolution of the enforcement action 
to bar the Firm and its CEO from the industry was not concluded until 
2012, four years after the disruptive and allegedly manipulative 
trading activity was first identified.
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    \6\ See Biremis Corp. and Peter Beck, FINRA Letter of 
Acceptance, Waiver and Consent No. 2010021162202, July 30, 2012.
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    In September of 2012, Hold Brothers On-Line Investment Services, 
Inc. (the ``Firm'') settled a regulatory action in connection with the 
Firm's provision of a trading platform, trade software and trade 
execution, support and clearing services for day traders.\7\ Many 
traders using the Firm's services were located in foreign 
jurisdictions. The Firm ultimately settled the action with FINRA and 
several exchanges, including the Exchange, for a total monetary fine of 
$3.4 million. In a separate action, the Firm settled with the 
Commission for a monetary fine of $2.5 million.\8\ Among the alleged 
violations in the case were disruptive and allegedly manipulative 
quoting and trading activity, including spoofing, layering, wash 
trading, and pre-arranged trading. Through its

[[Page 67040]]

conduct and insufficient procedures and controls, the Firm also 
allegedly committed anti-money laundering violations by failing to 
detect and report manipulative and suspicious trading activity. The 
Firm was alleged to have not only provided foreign traders with access 
to the U.S. markets to engage in such activities, but that its 
principals also owned and funded foreign subsidiaries that engaged in 
the disruptive and allegedly manipulative quoting and trading activity. 
Although the pattern of disruptive and allegedly manipulative quoting 
and trading activity was identified in 2009, as noted above, the 
enforcement action was not concluded until 2012. Thus, although 
disruptive and allegedly manipulative quoting and trading was promptly 
detected, it continued for several years.
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    \7\ See Hold Brothers On-Line Investment Services, LLC, FINRA 
Letter of Acceptance, Waiver and Consent No. 20100237710001, 
September 25, 2012.
    \8\ In the Matter of Hold Brothers On-Line Investment Services, 
LLC, Exchange Act Release No. 67924, September 25, 2012.
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    The Exchange also notes the current criminal proceedings that have 
commenced against Navinder Singh Sarao. Mr. Sarao's allegedly 
manipulative trading activity, which included forms of layering and 
spoofing in the futures markets, has been linked as a contributing 
factor to the ``Flash Crash'' of 2010, and yet continued through 2015.
    The Exchange believes that the activities described in the cases 
above provide justification for the proposed rule change, which is 
described below. In addition, while the examples provided are related 
to the equities market, the Exchange believes that this type of conduct 
should be prohibited for options as well. The Exchange believes that 
these patterns of disruptive and allegedly manipulative quoting and 
trading activity need to be addressed and the product should not limit 
the action taken by the Exchange.
Rule 1616--Expedited Client Suspension Proceeding
    The Exchange proposes to adopt new Rule 1616, titled ``Expedited 
Client Suspension Proceeding,'' to set forth procedures for issuing 
suspension orders, immediately prohibiting a Member from conducting 
continued disruptive quoting and trading activity on the Exchange. 
Importantly, these procedures would also provide the Exchange the 
authority to order a Member to cease and desist from providing access 
to the Exchange to a client of the Member that is conducting disruptive 
quoting and trading activity in violation of proposed Rule 403, which 
is currently reserved. New Rule 403 would be titled, ``Disruptive 
Quoting and Trading Activity Prohibited.'' Under proposed paragraph (a) 
of Rule 1616, with the prior written authorization of the Chief 
Regulatory Officer (``CRO'') or such other senior officers as the CRO 
may designate, the Office of General Counsel or Regulatory Department 
of the Exchange (such departments generally referred to as the 
``Exchange'' for purposes of proposed Rule 1616) may initiate an 
expedited suspension proceeding with respect to alleged violations of 
Rule 403, which is proposed as part of this filing and described in 
detail below. Proposed paragraph (a) would also set forth the 
requirements for notice and service of such notice pursuant to the 
Rule, including the required method of service and the content of 
notice.
    Proposed paragraph (b) of Rule 1616 would govern the appointment of 
a Hearing Panel as well as potential disqualification or recusal of 
Hearing Officers. The proposed provision is consistent with existing 
Exchange Rule 1606(a). The proposed rule provides for a Hearing Officer 
to be recused in the event he or she has a conflict of interest or bias 
or other circumstances exist where his or her fairness might reasonably 
be questioned in accordance with Rules 1616(b)(2). In addition to 
recusal initiated by such a Hearing Officer, a party to the proceeding 
will be permitted to file a motion to disqualify a Hearing Officer. 
However, due to the compressed schedule pursuant to which the process 
would operate under Rule 1616, the proposed rule would require such 
motion to be filed no later than 5 days after the announcement of the 
Hearing Panel and the Exchange's brief in opposition to such motion 
would be required to be filed no later than 5 days after service 
thereof. Pursuant to existing Rule 1606(a)(3), any time a person 
serving on a Panel has a conflict of interest or bias or circumstances 
otherwise exist where his fairness might be reasonably questioned, the 
person must withdraw from the Panel. The applicable Hearing Officer 
shall remove himself or herself and the Panel Chairman may request the 
Chairman of the Business Conduct Committee select a replacement such 
that the Hearing Panel still meets the compositional requirements 
described in Rule 1616(a).
    Under paragraph (c) of the proposed Rule, the hearing would be held 
not later than 15 days after service of the notice initiating the 
suspension proceeding, unless otherwise extended by the Chairman of the 
Hearing Panel with the consent of the Parties for good cause shown. In 
the event of a recusal or disqualification of a Hearing Officer, the 
hearing shall be held not later than five days after a replacement 
Hearing Officer is appointed. Proposed paragraph (c) would also govern 
how the hearing is conducted, including the authority of Hearing 
Officers, witnesses, additional information that may be required by the 
Hearing Panel, the requirement that a transcript of the proceeding be 
created and details related to such transcript, and details regarding 
the creation and maintenance of the record of the proceeding. Proposed 
paragraph (c) would also state that if a Respondent fails to appear at 
a hearing for which it has notice, the allegations in the notice and 
accompanying declaration may be deemed admitted, and the Hearing Panel 
may issue a suspension order without further proceedings. Finally, as 
proposed, if the Exchange fails to appear at a hearing for which it has 
notice, the Hearing Panel may order that the suspension proceeding be 
dismissed.
    Under paragraph (d) of the proposed Rule, the Hearing Panel would 
be required to issue a written decision stating whether a suspension 
order would be imposed. The Hearing Panel would be required to issue 
the decision not later than 10 days after receipt of the hearing 
transcript, unless otherwise extended by the Chairman of the Hearing 
Panel with the consent of the Parties for good cause shown. The Rule 
would state that a suspension order shall be imposed if the Hearing 
Panel finds by a preponderance of the evidence that the alleged 
violation specified in the notice has occurred and that the violative 
conduct or continuation thereof is likely to result in significant 
market disruption or other significant harm to investors.
    Proposed paragraph (d) would also describe the content, scope and 
form of a suspension order. As proposed, a suspension order shall be 
limited to ordering a Respondent to cease and desist from violating 
proposed Rule 403 and/or to ordering a Respondent to cease and desist 
from providing access to the Exchange to a client of Respondent that is 
causing violations of Rule 403. Under the proposed rule, a suspension 
order shall also set forth the alleged violation and the significant 
market disruption or other significant harm to investors that is likely 
to result without the issuance of an order. The order shall describe in 
reasonable detail the act or acts the Respondent is to take or refrain 
from taking, and suspend such Respondent unless and until such action 
is taken or refrained from. Finally, the order shall include the date 
and hour of its issuance. As proposed, a suspension order would remain 
effective and enforceable unless modified, set aside, limited, or 
revoked pursuant to proposed paragraph (e), as described below. 
Finally, paragraph (d) would require service of the Hearing

[[Page 67041]]

Panel's decision and any suspension order consistent with other 
portions of the proposed rule related to service.
    Proposed paragraph (e) of Rule 1616 would state that at any time 
after the Hearing Officers served the Respondent with a suspension 
order, a Party could apply to the Hearing Panel to have the order 
modified, set aside, limited, or revoked. If any part of a suspension 
order is modified, set aside, limited, or revoked, proposed paragraph 
(e) of Rule 1616 provides the Hearing Panel discretion to leave the 
cease and desist part of the order in place. For example, if a 
suspension order suspends Respondent unless and until Respondent ceases 
and desists providing access to the Exchange to a client of Respondent, 
and after the order is entered the Respondent complies, the Hearing 
Panel is permitted to modify the order to lift the suspension portion 
of the order while keeping in place the cease and desist portion of the 
order. With its broad modification powers, the Hearing Panel also 
maintains the discretion to impose conditions upon the removal of a 
suspension--for example, the Hearing Panel could modify an order to 
lift the suspension portion of the order in the event a Respondent 
complies with the cease and desist portion of the order but 
additionally order that the suspension will be re-imposed if Respondent 
violates the cease and desist provisions modified order in the future. 
The Hearing Panel generally would be required to respond to the request 
in writing within 10 days after receipt of the request. An application 
to modify, set aside, limit or revoke a suspension order would not stay 
the effectiveness of the suspension order.
    Finally, proposed paragraph (f) would provide that sanctions issued 
under the proposed Rule 1616 would constitute final and immediately 
effective disciplinary sanctions imposed by the Exchange, and that the 
right to have any action under the Rule reviewed by the Commission 
would be governed by Section 19 of the Act. The filing of an 
application for review would not stay the effectiveness of a suspension 
order unless the Commission otherwise ordered.
Rule 403--Disruptive Quoting and Trading Activity Prohibited
    The Exchange currently has authority to prohibit and take action 
against manipulative trading activity, including disruptive quoting and 
trading activity, pursuant to its general market manipulation rules, 
including Rules 400 and 405. The Exchange proposes to adopt new Rule 
403, which would more specifically define and prohibit disruptive 
quoting and trading activity on the Exchange. As noted above, the 
Exchange proposes to apply the proposed suspension rules to proposed 
Rule 403.
    Proposed Rule 403 would prohibit Members from engaging in or 
facilitating disruptive quoting and trading activity on the Exchange, 
as described in proposed Rule 403(a)(i) and (ii), including acting in 
concert with other persons to effect such activity. The Exchange 
believes that it is necessary to extend the prohibition to situations 
when persons are acting in concert to avoid a potential loophole where 
disruptive quoting and trading activity is simply split between several 
brokers or customers. The Exchange believes, that with respect to 
persons acting in concert perpetrating an abusive scheme, it is 
important that the Exchange have authority to act against the parties 
perpetrating the abusive scheme, whether it is one person or multiple 
persons.
    To provide proper context for the situations in which the Exchange 
proposes to utilize its proposed authority, the Exchange believes it is 
necessary to describe the types of disruptive quoting and trading 
activity that would cause the Exchange to use its authority. 
Accordingly, the Exchange proposes to adopt Rule 403(a)(i) and (ii) 
providing additional details regarding disruptive quoting and trading 
activity. Proposed Rule 403(a)(i)(a) describes disruptive quoting and 
trading activity containing many of the elements indicative of 
layering. It would describe disruptive quoting and trading activity as 
a frequent pattern in which the following facts are present: (i) A 
party enters multiple limit orders on one side of the market at various 
price levels (the ``Displayed Orders''); and (ii) following the entry 
of the Displayed Orders, the level of supply and demand for the 
security changes; and (iii) the party enters one or more orders on the 
opposite side of the market of the Displayed Orders (the ``Contra-Side 
Orders'') that are subsequently executed; and (iv) following the 
execution of the Contra-Side Orders, the party cancels the Displayed 
Orders.
    Proposed Rule 403(a)(i)(b) describes disruptive quoting and trading 
activity containing many of the elements indicative of spoofing and 
would describe disruptive quoting and trading activity as a frequent 
pattern in which the following facts are present: (i) A party narrows 
the spread for a security by placing an order inside the national best 
bid or offer; and (ii) the party then submits an order on the opposite 
side of the market that executes against another market participant 
that joined the new inside market established by the order described in 
proposed 403(a)(i)(b)(i) that narrowed the spread. The Exchange 
believes that the proposed descriptions of disruptive quoting and 
trading activity articulated in the rule are consistent with the 
activities that have been identified and described in the client access 
cases described above. The Exchange further believes that the proposed 
descriptions will provide Members with clear descriptions of disruptive 
quoting and trading activity that will help them to avoid engaging in 
such activities or allowing their clients to engage in such activities.
    The Exchange proposes to make clear in proposed Rule 403(a)(ii), 
unless otherwise indicated, the descriptions of disruptive quoting and 
trading activity do not require the facts to occur in a specific order 
in order for the rule to apply. For instance, with respect to the 
pattern defined in proposed Rule 403(a)(i)(a) it is of no consequence 
whether a party first enters Displayed Orders and then Contra-side 
Orders or vice-versa. However, as proposed, it is required for supply 
and demand to change following the entry of the Displayed Orders. The 
Exchange also proposes to make clear that disruptive quoting and 
trading activity includes a pattern or practice in which some portion 
of the disruptive quoting and trading activity is conducted on the 
Exchange and the other portions of the disruptive quoting and trading 
activity are conducted on one or more other exchanges. The Exchange 
believes that this authority is necessary to address market 
participants who would otherwise seek to avoid the prohibitions of the 
proposed Rule by spreading their activity amongst various execution 
venues. In sum, proposed Rule 403 coupled with proposed Rule 1616 would 
provide the Exchange with authority to promptly act to prevent 
disruptive quoting and trading activity from continuing on the 
Exchange.
    Below is an example of how the proposed rule would operate.
    Assume that through its surveillance program, Exchange staff 
identifies a pattern of potentially disruptive quoting and trading 
activity. After an initial investigation the Exchange would then 
contact the Member responsible for the orders that caused the activity 
to request an explanation of the activity as well as any additional 
relevant information, including the source of the activity. If the 
Exchange were to continue to see the same pattern from the same Member 
and the source of the activity is the same or has been previously 
identified

[[Page 67042]]

as a frequent source of disruptive quoting and trading activity then 
the Exchange could initiate an expedited suspension proceeding by 
serving notice on the Member that would include details regarding the 
alleged violations as well as the proposed sanction. In such a case the 
proposed sanction would likely be to order the Member to cease and 
desist providing access to the Exchange to the client that is 
responsible for the disruptive quoting and trading activity and to 
suspend such Member unless and until such action is taken.
    The Member would have the opportunity to be heard in front of a 
Hearing Panel at a hearing to be conducted within 15 days of the 
notice. If the Hearing Panel determined that the violation alleged in 
the notice did not occur or that the conduct or its continuation would 
not have the potential to result in significant market disruption or 
other significant harm to investors, then the Hearing Panel would 
dismiss the suspension order proceeding.
    If the Hearing Panel determined that the violation alleged in the 
notice did occur and that the conduct or its continuation is likely to 
result in significant market disruption or other significant harm to 
investors, then the Hearing Panel would issue the order including the 
proposed sanction, ordering the Member to cease providing access to the 
client at issue and suspending such Member unless and until such action 
is taken. If such Member wished for the suspension to be lifted because 
the client ultimately responsible for the activity no longer would be 
provided access to the Exchange, then such Member could apply to the 
Hearing Panel to have the order modified, set aside, limited or 
revoked. The Exchange notes that the issuance of a suspension order 
would not alter the Exchange's ability to further investigate the 
matter and/or later sanction the Member pursuant to the Exchange's 
standard disciplinary process for supervisory violations or other 
violations of Exchange rules or the Act.
    The Exchange reiterates that it already has broad authority to take 
action against a Member in the event that such Member is engaging in or 
facilitating disruptive or manipulative trading activity on the 
Exchange. For the reasons described above, and in light of recent cases 
like the client access cases described above, as well as other cases 
currently under investigation, the Exchange believes that it is equally 
important for the Exchange to have the authority to promptly initiate 
expedited suspension proceedings against any Member who has 
demonstrated a clear pattern or practice of disruptive quoting and 
trading activity, as described above, and to take action including 
ordering such Member to terminate access to the Exchange to one or more 
of such Member's clients if such clients are responsible for the 
activity.
    The Exchange recognizes that its proposed authority to issue a 
suspension order is a powerful measure that should be used very 
cautiously. Consequently, the proposed rules have been designed to 
ensure that the proceedings are used to address only the most clear and 
serious types of disruptive quoting and trading activity and that the 
interests of Respondents are protected. For example, to ensure that 
proceedings are used appropriately and that the decision to initiate a 
proceeding is made only at the highest staff levels, the proposed rules 
require the CRO or another senior officer of the Exchange to issue 
written authorization before the Exchange can institute an expedited 
suspension proceeding. In addition, the rule by its terms is limited to 
violations of Rules 403, when necessary to protect investors, other 
Members and the Exchange. The Exchange will initiate disciplinary 
action for violations of Rule 403, pursuant to Rule 1616. Further, the 
Exchange believes that the proposed expedited suspension provisions 
described above that provide the opportunity to respond as well as a 
Hearing Panel determination prior to taking action will ensure that the 
Exchange would not utilize its authority in the absence of a clear 
pattern or practice of disruptive quoting and trading activity.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \9\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \10\ in particular, in that it is designed to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in facilitating transactions in 
securities, 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. Pursuant to the proposal, 
the Exchange will have a mechanism to promptly initiate expedited 
suspension proceedings in the event the Exchange believes that it has 
sufficient proof that a violation of Rule 403 has occurred and is 
ongoing.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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    Further, the Exchange believes that the proposal is consistent with 
Sections 6(b)(1) and 6(b)(6) of the Act,\11\ which require that the 
rules of an exchange enforce compliance with, and provide appropriate 
discipline for, violations of the Commission and Exchange rules. The 
Exchange also believes that the proposal is consistent with the public 
interest, the protection of investors, or otherwise in furtherance of 
the purposes of the Act because the proposal helps to strengthen the 
Exchange's ability to carry out its oversight and enforcement 
responsibilities as a self-regulatory organization in cases where 
awaiting the conclusion of a full disciplinary proceeding is unsuitable 
in view of the potential harm to other Members and their customers. 
Also, the Exchange notes that if this type of conduct is allowed to 
continue on the Exchange, the Exchange's reputation could be harmed 
because it may appear to the public that the Exchange is not acting to 
address the behavior. The expedited process would enable the Exchange 
to address the behavior with greater speed.
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    \11\ 15 U.S.C. 78f(b)(1) and 78f(b)(6).
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    As explained above, the Exchange notes that it has defined the 
prohibited disruptive quoting and trading activity by modifying the 
traditional definitions of layering and spoofing \12\ to eliminate an 
express intent element that would not be proven on an expedited basis 
and would instead require a thorough investigation into the activity. 
As noted throughout this filing, the Exchange believes it is necessary 
for the protection of investors to make such modifications in order to 
adopt an expedited process rather than allowing disruptive quoting and 
trading activity to occur for several years.
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    \12\ See supra, notes 4 and 5.
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    Through this proposal, the Exchange does not intend to modify the 
definitions of spoofing and layering that have generally been used by 
the Exchange and other regulators in connection with actions like those 
cited above. The Exchange believes that the pattern of disruptive and 
allegedly manipulative quoting and trading activity was widespread 
across multiple exchanges, and the Exchange, FINRA, and other SROs 
identified clear patterns of the behavior in 2007 and 2008 in the 
equities markets.\13\ The Exchange believes that this proposal will 
provide the Exchange with the necessary means to enforce against such 
behavior in an expedited manner while providing

[[Page 67043]]

Members with the necessary due process. The Exchange believes that its 
proposal is consistent with the Act because it provides the Exchange 
with the ability 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 from such ongoing behavior.
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    \13\ See Section 3 herein, the Purpose section, for examples of 
conduct referred to herein.
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    Further, the Exchange believes that adopting a rule applicable to 
Options Participants is consistent with the Act because the Exchange 
believes that this type of behavior should be prohibited for all 
Members. The type of product should not be the determining factor, 
rather the behavior which challenges the market structure is the 
primary concern for the Exchange. While this behavior may not be as 
prevalent on the options market today, the Exchange does not believe 
that the possibility of such behavior in the future would not have the 
same market impact and thereby warrant an expedited process.
    The Exchange further believes that the proposal is consistent with 
Section 6(b)(7) of the Act,\14\ which requires that the rules of an 
exchange ``provide a fair procedure for the disciplining of members and 
persons associated with members . . . and the prohibition or limitation 
by the exchange of any person with respect to access to services 
offered by the exchange or a member thereof.'' Finally, the Exchange 
also believes the proposal is consistent with Sections 6(d)(1) and 
6(d)(2) of the Act,\15\ which require that the rules of an exchange 
with respect to a disciplinary proceeding or proceeding that would 
limit or prohibit access to or membership in the exchange require the 
exchange to: Provide adequate and specific notice of the charges 
brought against a member or person associated with a member, provide an 
opportunity to defend against such charges, keep a record, and provide 
details regarding the findings and applicable sanctions in the event a 
determination to impose a disciplinary sanction is made. The Exchange 
believes that each of these requirements is addressed by the notice and 
due process provisions included within Rule 1616. Importantly, as noted 
above, the Exchange will use the authority only in clear and egregious 
cases when necessary to protect investors, other Members and the 
Exchange, and in such cases, the Respondent will be afforded due 
process in connection with the suspension proceedings.
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    \14\ 15 U.S.C. 78f(b)(7).
    \15\ U.S.C. 78f(d)(1).
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    Further, the Exchange believes that adopting a rule applicable to 
options is consistent with the Act because the Exchange believes that 
this type of behavior should be prohibited for all Members. The type of 
product should not be the determining factor, rather the behavior which 
challenges the market structure is the primary concern for the 
Exchange. While this behavior may not be as prevalent on the options 
market today, the Exchange does not believe that the possibility of 
such behavior in the future would not have the same market impact and 
thereby warrant an expedited process.

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 not necessary or appropriate in 
furtherance of the purposes of the Act. To the contrary, the Exchange 
believes that each self-regulatory organization should be empowered to 
regulate trading occurring on its market consistent with the Act and 
without regard to competitive issues. The Exchange is requesting 
authority to take appropriate action if necessary for the protection of 
investors, other Members and the Exchange. The Exchange also believes 
that it is important for all exchanges to be able to take similar 
action to enforce their rules against manipulative conduct thereby 
leaving no exchange prey to such conduct.
    The Exchange does not believe that the proposed rule change imposes 
an undue burden on competition, rather this process will provide the 
Exchange with the necessary means to enforce against violations of 
manipulative quoting and trading activity in an expedited manner, while 
providing Members with the necessary due process. The Exchange's 
proposal would treat all Members in a uniform manner with respect to 
the type of disciplinary action that would be taken for violations of 
manipulative quoting and trading activity.

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

    No written comments were either solicited or received.

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

    Because the 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)(iii) of the Act \16\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\17\
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    \16\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \17\ 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 under Rule 19b-4(f)(6) normally does 
not become operative for 30 days after the date of its filing. However, 
Rule 19b-4(f)(6)(iii) \18\ permits the Commission to designate a 
shorter time if such action is consistent with the protection of 
investors and the public interest. The Exchange has requested that the 
Commission waive the 30-day operative delay so that the proposed rule 
change will become operative on filing. The Exchange stated that the 
proposed rule change would allow the Exchange to regulate its market in 
a manner similar to other options exchanges. The Exchange also believes 
that it is important to prohibit Members from engaging in the 
manipulative conduct described above in a uniform manner on all 
exchanges. For these reasons, the Commission believes that waiver of 
the 30-day operative delay is consistent with the protection of 
investors and the public interest. Therefore, the Commission designates 
the proposed rule change to be operative upon filing.\19\
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    \18\ 17 CFR 240.19b-4(f)(6)(iii).
    \19\ For purposes only of waiving the 30-day operative delay, 
the Commission also 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 such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing,

[[Page 67044]]

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 email to [email protected]. Please include 
File Number SR-ISE-2016-21 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISE-2016-21. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (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 Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-ISE-2016-21, and should be 
submitted on or before October 20, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-23498 Filed 9-28-16; 8:45 am]
BILLING CODE 8011-01-P