[Federal Register: February 7, 2005 (Volume 70, Number 24)]
[Notices]
[Page 6484-6486]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe05-117]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-51091; File No. SR-NYSE-2005-01]
Self-Regulatory Organizations; New York Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Two Crossing Sessions in the Exchange's Off-Hours Trading
Facility
January 28, 2005.
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 January 4, 2005, the New York Stock Exchange, Inc. (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
filed the proposed rule change pursuant to Section 19(b)(3)(A) of the
Act \3\ and Rule 19b-4(f)(6) thereunder, which renders it effective
upon filing with the Commission.\4\ 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.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The proposed rule change makes operative the following pilot
programs until February 1, 2006: Crossing Session III, for the
execution of guaranteed price coupled orders by member organizations to
fill the balance of customer orders at a price that was guaranteed to a
customer prior to the close of the Exchange's 9:30 a.m. to 4 p.m.
trading session (``Crossing Session III''); and Crossing Session IV,
whereby an unfilled balance of an order may be filled at a price such
that the entire order is filled at no worse price than the Volume
Weighted Average Price (``VWAP'') for the subject security (``Crossing
Session IV'') (Crossing Session III and Crossing Session IV, the
``Pilots'').\5\
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\5\ On November 12, 2004, the Exchange made an electronic 19b-4
filing to extend the Pilots as of December 1, 2004, the date the
Pilots were due to expire. The Commission did not receive this
filing, however. With the instant proposed rule change, the Exchange
is making the Pilots operative until February 1, 2006.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for the Proposed Rule Change
In its filing with the Commission, NYSE 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 the proposed rule change is available on the NYSE's Web site
(http://www.nyse.com), at the NYSE's Office of the Secretary, and at
the Commission's Public Reference Room. The Exchange has prepared
summaries, set forth in Sections A, B, and C below, of the most
significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
In SR-NYSE-2002-40,\6\ the Commission approved the establishment of
the Pilots in the Exchange's Off-Hours Trading Facility (``OHTF''),
expiring on December 1, 2004. The instant proposed rule change makes
the Pilots operative until February 1, 2006. No changes have been made
to the manner in which the Pilots operate.\7\
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\6\ See Securities Exchange act Release No. 48857 (December 1,
2003), 68 FR 68440 (December 8, 2003) (SR-NYSE-2002-40).
\7\ See January 7, 2005 telephone conference among Donald
Siemer, Director, Market Surveillance, NYSE, Joseph P. Morra,
Special Counsel, Division of Market Regulation (``Division''),
Commission and Mitra Mehr, Attorney, Division, Commission.
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Background
The purpose of SR-NYSE-2002-40 was to add two pilot programs,
Crossing Session III and Crossing Session IV, to the OHTF. Before the
proposed rule change, the OHTF consisted of Crossing Sessions I and II.
Crossing Session I permits the execution, at the Exchange's closing
price, of single-stock, single-sided closing price orders and crosses
of single-stock, closing price buy and sell orders. Crossing Session II
permits the execution of crosses of multiple-stock (``basket'')
aggregate price buy and sell orders. For Crossing Session II, trade
reporting is accomplished by reporting to the Consolidated Tape the
total number of shares and the total market value of the aggregate-
price trades. There is no indication of the individual component stocks
involved in the aggregate-price transactions.
[[Page 6485]]
Crossing Session III
As described below, the Exchange is proposing to make operative
until February 1, 2006, the pilot program, Crossing Session III, as
described in Exchange Rule 907. This Pilot would continue to allow for
the execution on the NYSE of ``guaranteed price coupled orders''
whereby member organizations could fill the unfilled balance of a
customer order at a price which was guaranteed to the customer prior to
the close of the Exchange's 9:30 a.m. to 4 p.m. trading session.
The Granting of ``Upstairs Stops''
In serving their institutional customers, member firms may offer
them a guarantee that a large size order will receive no worse than a
particular price. Such a practice is usually referred to as an
``upstairs stop,'' meaning that the firm guarantees that its customer's
order will be executed at no worse price than the agreed-upon,
guaranteed price, with the member firm trading for its own account, if
necessary, to effectuate the guarantee.
Typically, a member firm will seek to execute as much of the order
as possible during the trading day at or below the ``stop'' price (in
the case of a buy order) or at or above the ``stop'' price (in the case
of a sell order). Any portion of the order not filled during the
trading day will be completed after hours, with the firm either buying
from, or selling to, its customer at a price which ensures that the
entire order is executed at a price which is no worse than the ``stop''
price.
Member firms typically execute the unfilled balance of the order,
after the U.S. Consolidated Tape is closed, in the London over-the-
counter market, where trades are not reported in real time. The purpose
of this is simply to minimize the possibility that other market
participants may ascertain the firm's, or the customer's inventory
position, and possibly trade in the subject security to the detriment
of the firm that granted the upstairs stop.
Crossing Session IV
The Exchange is also proposing to make operative until February 1,
2006 the pilot program for Crossing Session IV as described in Exchange
Rule 907. Crossing Session IV is a facility whereby member
organizations may fill the unfilled balance of a customer's order at a
price such that the overall order is filled at a price that is no worse
than the VWAP for the subject security on that trading day. The member
organization would be required to document its VWAP agreement with the
customer and the basis upon which the VWAP price would be determined.
Operation of Crossing Sessions
Crossing Session III and Crossing Session IV would continue to
operate as follows:
(i) The original order as to which an ``upstairs stop'' or ``VWAP''
has been granted must be for at least 10,000 shares;
(ii) The customer must have received a ``stop'' (guaranteed price)
or VWAP for the entire order;
(iii) The member firm must record all details of the order,
including the price it has guaranteed its customer or that the entire
order will be filled at no worse than the VWAP;
(iv) The unfilled balance of the order that would be executed in
Crossing Session III or Crossing Session IV must be at least 10,000
shares;
(v) The customer's order must be executed in Crossing Session III
or Crossing Session IV at a price that ensures that the entire order is
executed at a price that is no worse than the guaranteed price or the
VWAP;
(vi) Orders may be entered in Crossing Session III or Crossing
Session IV between 4 p.m. and 6:30 p.m., and must be identified as
either a Crossing Session III or Crossing Session IV order;
(vii) Member firms would receive an immediate report of execution
upon entering an order into Crossing Session III or Crossing Session
IV;
(viii) Orders may be entered into Crossing Session III for
execution at prices outside the trading range in the subject security
during the 9:30 a.m. to 4 p.m. trading session;
(ix) Orders may not be entered into Crossing Session III or
Crossing Session IV in a security that is subject to a trading halt at
the close of the regular 9:30 a.m. to 4 p.m. trading session; and
(x) At 6:30 p.m., the Exchange would print trades reported through
Crossing Session III as guaranteed price coupled orders or in Crossing
Session IV as VWAP executions.
2. Statutory Basis
NYSE believes that the proposed rule change is consistent with
Section 6 of the Act \8\ in general, and furthers the objectives of
Section 6(b)(5) of the Act \9\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanisms of a free and open market and the
national market system and, in general, to protect investors and the
public interest.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received from Members, Participants or Others
The Exchange has neither solicited nor received written comments on
the proposed rule change.
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) \10\ and Rule 19b-4(f)(6)
thereunder.\11\ At any time within 60 days of the filing of the
proposed rule change, the Commission may summarily abrogate such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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\10\ 15 U.S.C. 78s(b)(3)(A).
\11\ 17 CFR 240.19b-4(f)(6).
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NYSE has asked the Commission to waive the five-day pre-filing
notice requirement and the 30-day operative delay. The Commission
believes such waiver is consistent with the protection of investors and
the public interest because it would allow the Pilots to be operative
without unnecessary delay.\12\ For this reason, the Commission
designates the proposal to be operative upon filing with the
Commission.
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\12\ For purposes only of waiving the 30-day pre-operative
period, the Commission has considered the proposed rule's impact on
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml
); or
[[Page 6486]]
Send e-mail to rule-comments@sec.gov. Please include File
Number SR-NYSE-2005-01 on the subject line.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549-0609.
All submissions should refer to File Number SR-NYSE-2005-01. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml
). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing will also be available for inspection and copying at the
principal office of the NYSE. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSE-2005-01 and should be submitted on or before
February 28, 2005.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E5-469 Filed 2-4-05; 8:45 am]
BILLING CODE 8010-01-P