[Federal Register: March 25, 2008 (Volume 73, Number 58)]
[Notices]
[Page 15810-15814]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr08-105]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-57527; File No. SR-Amex-2007-129]
Self-Regulatory Organizations; American Stock Exchange LLC;
Notice of Filing of a Proposed Rule Change Relating to an Exchange
Member's Conduct of Doing Business With the Public
March 19, 2008.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of
1934, as amended (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is
hereby given that on November 29, 2007, the American Stock Exchange LLC
(``Amex'' 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 substantially
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)(l).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Amex proposes to amend certain Amex Rules that govern an
Exchange member's conduct of doing business with the public.
Specifically, the proposed rule change would require member
organizations (also ``member firms'' or ``firms'') to integrate the
responsibility for supervision of their public customer options
business into its overall supervisory and compliance programs. In
addition, the proposal would require member firms to strengthen their
supervisory procedures and internal controls as related to their public
customer options business.
The text of the proposed rule change is available at the Amex, the
Commission's Public Reference Room and http://www.amex.com.
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 Amex 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 III below. The Amex 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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
a. Integration of Options Supervision
The purpose of the proposed rule change is to create a supervisory
structure for options that is similar to that required by New York
Stock Exchange, Inc. (``NYSE'') Rule 342 and National Association of
Securities Dealers, Inc. (``NASD'') Rule 3010.\3\ The proposed rule
change would also conform Amex rules to those of the CBOE by
eliminating the requirement that a member firm, qualified to do a
public customer business in options, designate a single person to act
as a Senior Registered Options Principal (``SROP'') for the member
organization and that each such member organization designate a
specific individual as a Compliance Registered Options Principal
(``CROP'').\4\ The Exchange proposes to eliminate the SROP and CROP
supervisory categories, allowing member firms to supervise their
options activities through their overall supervisory and compliance
programs that monitor all other securities products.
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\3\ On July 26, 2007, the Commission approved a proposed rule
change filed by NASD to amend NASD's Certificate of Incorporation to
reflect its name change to Financial Industry Regulatory Authority,
Inc., or FINRA, in connection with the consolidation of the member
firm regulatory functions of NASD and NYSE Regulation, Inc. See
Exchange Act Release No. 56146 (July 26, 2007), 72 FR 42190 (Aug. 1,
2007). The FINRA rule book currently consists of both NASD rules and
certain NYSE rules that FINRA has incorporated.
\4\ See Securities and Exchange Act Release No. 56492 (September
21, 2007) 72 FR 54952 (September 27, 2007) (SR-CBOE-2007-106).
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The SROP concept was first introduced during the early years of
development of the listed options market. Previously under Amex rules,
member firms were required to designate one or more persons qualified
as Registered Options Principals (``ROPs'') to have supervisory
responsibilities with respect to the firms' options business. As the
number of ROPs at larger firms began to increase, the Amex imposed an
additional requirement that member firms designate one of their ROPs as
the SROP. This was intended to eliminate confusion as to where the
compliance and supervisory responsibilities lay by centralizing in a
single supervisory officer overall responsibility for the supervision
of a firm's options activities.\5\ Subsequently, following the
recommendation of the Special Study of the Options Market,\6\ the Amex
and the other options exchanges required firms to designate a CROP to
be responsible for each firm's overall compliance program with respect
to its options activities. The CROP could be the same person designated
as a SROP, but while the CROP generally was not permitted to have sales
functions in the firm, whereas the SROP was not so restricted.
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\5\ Report of the Special Study of the Options Market (``Special
Study''), p. 316 note 11 (December 22, 1978).
\6\ Id. at p. 335.
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Since the SROP and CROP requirements were first imposed, the
supervisory function with respect to options activities of most
securities firms has been integrated into their supervisory function
matrix for securities activities overall. This not only reflects the
maturity of the options market, but also recognizes the ways in which
the uses of options themselves have become more integrated with other
securities in the implementation of particular strategies. By
permitting supervision of a firm's options activities to be handled in
the same manner as the supervision of its securities and futures
activities, the proposed rule change will ensure that supervisory
responsibility over each segment of a firm's business is assigned to
the best qualified persons in the firm, thereby enhancing the overall
quality of supervision and compliance.
The proposed rule change will allow firms the flexibility to assign
such supervisory and compliance responsibilities, which formerly
resided with the SROP and/or CROP, to more than one individual. For
example, the proposed rule change will permit a member firm to
designate certain ROPs to be responsible for a variety of supervisory
compliance functions such as approving acceptance of discretionary
accounts \7\; approval of communications to customers \8\ and
exceptions to a member firm's suitability standards for trading
uncovered short options.\9\ Firms would be likely to do this in
instances where the firm believes it advantageous to do so to enhance
its supervisory or compliance structure. Typically, a firm may also
wish to divide these functions on the basis of geographic region or
functional considerations. Amex Rule 920 would be amended to clarify
the qualification requirements of individuals designated as ROPs and
also
[[Page 15811]]
to specify the registration requirements of individuals who accept
orders from non-broker-dealer customers.
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\7\ See proposed Amex Rule 924(a) and Commentary .05 to Rule
920.
\8\ See proposed Amex Rule 991(b).
\9\ See proposed Amex Rule 921(g)(3).
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With respect to discretionary accounts, the proposal would require
acceptance of such accounts to be assigned to individuals who are
qualified ROPs. Further, the proposal would require that the individual
who reviews the acceptance of a discretionary account (who is an
individual other than the ROP who accepted the account as required by
Amex Rule 924(a)) to be Series 4 qualified because such a review is not
a routine sales supervisory function and requires more in-depth
knowledge of options than what is covered by the Series 9/10
examination.\10\ The proposed rule change would eliminate the
requirement that discretionary options orders be approved on the day of
entry by a ROP (with one exception as discussed below) because such
requirement is not consistent with the use of supervisory tools in
computerized format or exception reports generated after the close of
trading day. No similar requirement exists for supervision of other
securities accounts that are handled on a discretionary basis.\11\
Discretionary orders would be required to be reviewed in accordance
with a firm's written supervisory procedures. We believe the proposed
rule change will ensure that supervisory responsibilities are assigned
to specific qualified individuals, thereby enhancing the quality of
supervision.
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\10\ See supra note 5.
\11\ See, e.g., NYSE Rule 408.
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Amex Rule 924 would be revised by adding as Commentary .01, a
requirement that any firm that does not utilize computerized
surveillance tools for the frequent and appropriate review of
discretionary account activity must establish and implement procedures
to require ROP-qualified individuals (``Qualified Individuals'') who
have been designated to review discretionary accounts to approve and
initial each discretionary order on the day entered. The Exchange
believes that any firm that does not utilize computerized surveillance
tools to monitor discretionary account activity should continue to be
required to perform the daily manual review of discretionary orders.
Under the proposed rule change, firms would continue to be required
to designate Qualified Individuals to provide frequent appropriate
supervisory review of options discretionary accounts.\12\ This review
includes the requirement that these Qualified Individuals review the
accounts in order to determine whether the ROP accepting the account
had a reasonable basis for believing that the customer was able to
understand and bear the risks of the proposed strategies or
transactions. This requirement provides an additional level of
supervisory audit over options discretionary accounts that does not
exist for other securities discretionary accounts.
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\12\ See proposed Amex Rule 924(a).
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In addition, the proposed change to Amex Rule 922 would require
that each member organization provide for the preparation and
submission of a written annual report to one or more of its control
persons or, if the firm has no control person, to the audit committee
of its board of directors or its equivalent group (collectively
referred to as, ``Control Person''). The firm would be required to
submit the report to the Exchange and to its Control Person by April
1st of each year. The firm would be required to detail in the report
its supervision and compliance effort, including its options compliance
program, during the preceding year and the adequacy of its ongoing
compliance processes and procedures.\13\
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\13\ See proposed Amex Rules 922(g) and 922(h), which are
modeled after NYSE Rules 342.30 and 354, respectively.
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Proposed Amex Rule 922(g) would further provide that a member
organization that specifically includes its options compliance program
in a report that complies with substantially similar NYSE and NASD
rules will be deemed to have satisfied the requirements of Amex Rules
922(g) and 922(h).
Where appropriate, the proposed rule changes would delete
references to SROP and CROP in Amex Rules 421, 920, 921, 922, 924 and
991.
Although the proposed rule change would eliminate entirely the
positions and titles of SROP and CROP, firms would still be required to
designate a single general partner or executive officer to assume
overall authority and responsibility for internal supervision, control
of the organization and compliance with securities laws and
regulations.\14\ A firm would also be required to designate specific
qualified individuals as having supervisory or compliance
responsibilities over each aspect of the firm's options activities and
to set forth the names and titles of these individuals in its written
supervisory procedures.\15\
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\14\ See proposed Amex Rule 922(a).
\15\ See proposed Amex Rule 922(a).
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The Exchange is a party to an options sales practice compliance
plan, amended on March 26, 2007, entered into pursuant to Section 17(d)
of the Securities Exchange Act of 1934 (the ``1934 Act'') and Rule 17d-
2, promulgated thereunder.\16\ For Exchange members that are also FINRA
members, the amended plan allocates responsibility for examination and
enforcement of members' compliance with options sales practice rules
primarily to FINRA \17\ (the ``Options 17d-2 Plan''). For non-FINRA
members, the Options 17d-2 Plan provides that the exchange which is the
Designated Examining Authority (``DEA''), pursuant to Rule 17d-1 under
the Act, shall perform the regulatory responsibilities designated to it
in the Options 17d-2 Plan. Under these provisions the Amex currently
has responsibility for examination and enforcement of options sales
practice rules as to three members (one of which is a dual member of
the Philadelphia Stock Exchange and Amex and two Amex only members).
FINRA will be primarily responsible for options sales practice
examination and enforcement as to other dual members. In connection
with the approval of these proposed changes, the Exchange intends to
closely review written supervisory and compliance procedures of firms,
for which it is the DEA, in the course of its routine examinations of
member firms to ensure that supervisory and compliance responsibilities
are adequately defined.
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\16\ Securities Exchange Release Act No. 34-55532 (March 26,
2007) 72 FR 15729 (April 2, 2007).
\17\ See, infra, note 3.
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The Exchange believes the proposed rule changes will increase
accountability and eliminate impractical and unrealistic supervisory
standards applicable solely to listed options. The Exchange believes
that the proposed rule changes are appropriate and will not materially
alter the supervisory operations of firms.
Supervisory Procedures and Internal Controls
b. Supervisory Procedures and Internal Controls
The Exchange is also proposing to amend certain rules to strengthen
member firms' supervisory procedures and internal controls relating to
a member's public customer options business. The proposed rule changes
discussed below are modeled after NYSE and NASD rules approved by the
Commission in 2004.\18\ The Exchange
[[Page 15812]]
believes its proposal to strengthen member supervisory procedures and
internal controls is appropriate and consistent with the proposal
discussed above to integrate the responsibility for supervision of a
member firm's public customer options business into its overall
supervisory and compliance program.
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\18\ See Securities Exchange Act Release Nos. 49882 (June 17,
2004), 69 FR 35108 (June 23, 2004) (SR-NYSE-2002-36) (approval
order), 49883 (June 17, 2004), 69 FR 35092 (June 23, 2004) (SR-NASD-
2002-162) (approval order).
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The Exchange is proposing to revise Amex Rule 922(a)(3) to require
the development and implementation of written policies and procedures
reasonably designed to supervise sales managers and other supervisory
personnel who service customer options accounts.\19\ This requirement
would apply to branch office managers, sales managers, regional/
district sales managers, or any person performing a similar supervisory
function. Such policies and procedures are expected to encompass all
options sales-related activities. Proposed Amex Rule 922(a)(3)(i) would
require that supervisory reviews of producing sales managers be
conducted by a qualified ROP who is either senior to, or otherwise
``independent of,'' the producing manager under review.\20\ This
provision is intended to ensure that all options sales activity of a
producing manager is monitored for compliance with applicable
regulatory requirements by persons who do not have a personal interest
in such activity.
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\19\ Proposed Amex Rule 922(a)(3) is modeled after NYSE Rule
342.19.
\20\ An ``otherwise independent'' person is defined in proposed
Amex Rule 922(a)(3)(i).
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Proposed Amex Rule 922(a)(3)(ii) would provide an exception for
firms so limited in size and resources that there is no qualified
person senior to, or otherwise independent of, the producing manager to
conduct the review. In this case, the review would be conducted by a
qualified ROP to the extent practicable. Under proposed Amex Rule
922(a)(3)(iii), a member relying on the limited size and resources
exception must document the factors used to determine that compliance
with each of the ``senior'' or ``otherwise independent'' standards of
proposed Amex Rule 922(a)(3)(i) is not possible, and that the required
supervisory systems and procedures in place with respect to any
producing manager comply with the provisions of proposed Amex Rule
922(a)(3)(i) to the extent practicable.\21\
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\21\ Proposed Amex Rule 922(a)(3)(iv) would provide that a
member organization that complies with the NYSE or NASD rules that
are substantially similar to the requirements in Rules 922(a)(3)(i),
(a)(3)(ii) and (a)(3)(iii) will be deemed to have met such
requirements.
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Proposed Amex Rule 922(c)(i) would require member organizations to
develop and maintain adequate controls over each of their business
activities. The proposed rule would further require that such controls
include the establishment of procedures to independently verify and
test the supervisory systems and procedures for those business
activities. A firm would be required to include in the annual report,
prepared pursuant to proposed Amex Rule 922(g), a review of the firm's
efforts in this regard, including a summary of the tests conducted and
significant exceptions identified. The Exchange believes proposed Amex
Rule 922(c)(i) would enhance the overall quality of each member
organization's supervision and compliance function.\22\
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\22\ Proposed Amex Rule 922(c)(i) is modeled after NYSE Rule
342.23. Paragraph (c)(ii) of proposed Amex Rule 922 would provide
that a member organization that complies with NYSE or NASD rules
that are substantially similar to the requirements in paragraph
(c)(i) of proposed Amex Rule 922 will be deemed to have met such
requirements.
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Paragraph (d) of proposed Amex Rule 922 would establish
requirements for branch office inspections similar to the requirements
of NYSE Rule 342.24. Specifically Amex Rule 922(d) would require a
member organization to inspect, at least annually, each supervisory
branch office and inspect each non-supervisory branch office at least
once every three years.\23\ The proposed rule would further require
persons who conduct a firm's annual branch office inspection to be
independent of the direct supervision or control of the branch office
(i.e., not the branch office manager, or any person who directly or
indirectly reports to such manager, or any person to whom such manager
directly reports). The Exchange believes that requiring branch office
inspections to be conducted by someone who has no significant financial
interest in the success of a branch office should lead to more
objective and vigorous inspections.
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\23\ Proposed Amex Rules 922(d)(1)(i) and (ii) would provide
members with two exceptions from the annual supervisory branch
office inspection requirement.
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Under proposed Amex Rule 922(e), any firm seeking an exemption,
pursuant to Rule 922(d)(1)(ii), from the annual branch office
inspection requirement would be required to submit to the Exchange
written policies and procedures for systematic risk-based surveillance
of its branch offices, as defined in Rule 922(e). Proposed Amex Rule
922(f) would require the annual branch office inspection programs to
include, at a minimum, testing and verification of specified internal
controls.\24\ Proposed Amex Rule 922(d)(3) would provide that a firm
that complies with the requirements of NASD or the NYSE that are
substantially similar to the requirements of Rules 922(d), (e) and (f)
will be deemed to have met such requirements. The Exchange is also
proposing to amend Commentary .04 of Amex Rule 922 to define ``branch
office'' in a way that is substantially similar to the definition of
branch office in NYSE Rule 342.10.
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\24\ Proposed Rules 922(e) and (f) are modeled after NYSE Rules
342.25 and 342.26, respectively.
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Proposed Amex Rule 922(g)(4) would require a firm to designate a
Chief Compliance Officer (CCO). Proposed Rule 922(g)(5) would require
each firm's Chief Executive Officer (CEO), or equivalent, to certify
annually that the member organization has in place processes to (1)
establish and maintain policies and procedures reasonably designed to
achieve compliance with applicable Exchange rules and federal
securities laws and regulations, (2) modify such policies and
procedures as business, regulatory, and legislative changes and events
dictate, and (3) test the effectiveness of such policies and procedures
on a regular basis, the timing of which is reasonably designed to
ensure continuing compliance with Exchange rules and federal securities
laws and regulations.
Proposed Amex Rule 922(g)(5) would also require the CEO to attest
(1) that he or she has conducted one or more meetings with the CCO in
the preceding 12 months to discuss the compliance processes in proposed
Rule 922(g)(5)(i), (2) that he or she has consulted with the CCO and
other officers to the extent necessary to attest to the statements in
the certification, and (3) that the compliance processes are evidenced
in a report, reviewed by the CEO, CCO and such other officers as the
member firm deems necessary to make the certification, that is provided
to the member firm's board of directors and audit committee (if such
committee exists).\25\
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\25\ Proposed Amex Rule 922(g)(5) is modeled after NASD Rule
3013 and NYSE Rule 342.30(e).
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Under proposed Amex Rule 922(b)(2), a member, upon a customer's
written instructions, may hold mail for a customer who will be away
from his or her usual address for no longer than two months if the
customer is on vacation or traveling, or three months if the customer
is going abroad. This provision would help ensure that members that
hold mail, for customers who are away from their usual addresses, do so
only pursuant to the
[[Page 15813]]
customer's written instructions and for a specified, relatively short
period of time.\26\
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\26\ Proposed Amex Rule 922(b)(2) is modeled after NASD Rule
3110(i).
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Proposed Amex Rule 922(b)(3) would require that, before a customer
options order is executed, the account name or designation must be
placed upon the memorandum for each transaction. In addition, only a
Qualified Individual would be permitted to approve any changes in
account names or designations. The ROP would be required to document
the essential facts relied upon in approving the changes and maintain
the record in an easily accessible place. A member would be required to
preserve any documentation which provides for an account designation
change for a period of not less than three years, with the
documentation preserved for the first two years in an easily accessible
place, as the term ``easily accessible place'' is used in Rule 17a-4 of
the Act.\27\ The Exchange believes the proposed rule would help to
protect account name and designation information from possible
fraudulent activity.\28\
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\27\ 17 CFR 240.17a-4.
\28\ Proposed Amex Rule 922(b)(3) is modeled after NASD 3110(j).
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Amex Rule 924(d) allows firms to exercise time and price discretion
on orders for the purchase or sale of a definite number of options
contracts in a specified security. The Exchange proposes to amend Amex
Rule 924(d) to limit the duration of this discretionary authority to
the day it is granted, absent written authorization to the contrary. In
addition, the proposed rule would require any exercise of time and
price discretion to be reflected on the customer order ticket. The
proposed one-day limitation would not apply to time and price
discretion exercised for orders effected with or for an institutional
account (as defined in Rule 924(d)) pursuant to valid Good-Till-
Cancelled instructions issued on a ``not held'' basis. The Exchange
believes that investors will receive greater protection by clarifying
the time such discretionary orders remain pending.\29\
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\29\ Proposed Amex Rule 924(d) is modeled after NASD Rule
2510(d)(1).
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Overall, the Exchange believes the proposed rule changes recognize
that options have become more integrated with other securities in the
implementation of particular strategies, and thus should not continue
to be regulated as though they are a new and experimental product. The
Exchange further asserts that the supervisory and compliance structure
in place for non-options products at most firms is not materially
different from the structure in place for options. Accordingly, the
Exchange submits that the proposed rule changes are appropriate and
would not materially alter the supervisory operations of member firms.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6 of the Exchange Act \30\ in general and furthers the
objectives of Section 6(b)(5) \31\ in particular in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanism of a
free and open market and a national market system.
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\30\ 15 U.S.C. 78f(b).
\31\ 15 U.S.C. 78f(b)(5).
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Specifically, the Exchange believes this proposed rule change would
achieve these ends by integrating the supervision and compliance
functions relating to member organizations' public customer options
activities into their overall supervisory structure, thereby
eliminating any uncertainty over where supervisory responsibility lies,
and by fostering the strengthening of member organizations' internal
controls and supervisory systems.\32\
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\32\ Telephone call between Jeffrey Burns, Vice President and
Associate General Counsel, Amex, and Haimera Workie, Branch Chief,
Office of Chief Counsel, Division of Trading and Markets, SEC, on
March 19, 2008.
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange did not solicit or receive any written comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form http://
www.sec.gov/rules/sro.shtml; or
Send an e-mail to rulecomments@sec.gov. Please include
File No. SR-Amex-2007-129 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File No. SR-Amex-2007-129. 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 at http://www.sec.gov/rules/
sro.shtml. Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549 on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-Amex-2007-129 and
[[Page 15814]]
should be submitted on or before April 15, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
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\33\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-5965 Filed 3-24-08; 8:45 am]
BILLING CODE 8011-01-P