[Federal Register Volume 59, Number 100 (Wednesday, May 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12739]


[[Page Unknown]]

[Federal Register: May 25, 1994]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-34078; File No. SR-BSE-93-12]

 

Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Order 
Granting Temporary Approval for One Year to Proposed Rule Change 
Permitting Competing Specialists on the Floor of the Exchange

May 18, 1994.
    On June 4, 1993, the Boston Stock Exchange, Inc. (``BSE'' or 
``Exchange'') submitted to the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'')\1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to permit competing specialists 
(``CSs'') on the floor of the Exchange and to adopt guidelines 
governing their registration and activity. The proposed rule change was 
published for comment in Securities Exchange Act Release No. 32549 
(June 29, 1993), 58 FR 36229 (July 6, 1993).
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    \1\15 U.S.C. 78s(b)(1) (1988).
    \2\17 CFR 240.19b-4 (1993).
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    In addition, on July 7, 1993, September 24, 1993, and October 12, 
1993, the Exchange filed with the Commission Amendment Nos. 1, 2, and 
3, respectively. The amendments were published for comment in 
Securities Exchange Act Release No. 33089 (October 22, 1993), 58 FR 
58205 (October 29, 1993). Amendment Nos. 1 and 3 were largely 
technical, and resulted in deletions from the final text of the 
rule.\3\ Amendment No. 2 adds to the procedures for CSs an index 
arbitrage provision\4\ and a restriction on cash payment for order flow 
by CSs in those stocks in which the specialist becomes registered as a 
CS.\5\
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    \3\The substance of Amendment No. 1 concerned a requirement that 
appropriate Chinese Wall procedures be in place. In Amendment No. 2, 
the Exchange deleted the substance of Amendment No. 1. The Exchange, 
however submitted a separate proposed rule change (File No. SR-BSE-
93-17) establishing Chinese Wall procedures. See Securities Exchange 
Act Release No. 33090 (October 22, 1993) 58 FR 58206. That proposal 
is being separately approved today in conjunction with approval of 
this rule proposal. Amendment No. 3 deleted a footnote that had been 
added in Amendment No. 2.
    \4\The index arbitrage provision mirrors that portion of the 
NYSE's Rule 80A restriction on index arbitrage in situations where 
the Dow Jones Industrial Average has declined by 50 points or more 
from the previous day's closing value.
    \5\The Commission notes that the current registered specialist 
(the ``regular'' specialist) in a particular stock is not considered 
a ``competing specialist'' in that stock under the proposal, and 
therefore is not affected by this prohibition. If, however, it 
applies to compete in a different stock, it is a ``competing 
specialist'' in that stock and, pursuant to this rule change, may 
not pay for any order flow in that stock.
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II. Description of the Proposal

    The purpose of the proposed rule change is to permit competing 
specialists on the floor of the BSE. Currently, each stock traded on 
the BSE is assigned to one particular specialist. This contrasts with a 
multiple market maker system where competing market makers compete for 
order flow in the same securities. The BSE competing specialist 
proposal will permit up to three specialists\6\ in each stock, who 
would compete with each other for order flow.\7\ Each specialist will 
have the same affirmative and negative obligations as are imposed 
currently upon BSE specialists.
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    \6\The proposal provides for both a ``regular'' specialist (the 
current specialist) and up to two ``competing'' specialists. The 
regular specialist would remain responsible for (1) updating 
quotations, (2) coordinating all openings and reopenings to ensure 
that they are unitary, (3) inputing quotations on ITS to reflect the 
best BSE quote among all the specialists, and (4) coordinating 
trading halts. The BSE will display only one consolidated quotation 
to other markets in the National Market System.
    \7\The scope of the pilot is further limited in that each 
competitor may specialize in a maximum of 10 stocks unless the 
Market Performance Committee (``MPC'') approves an increase of up to 
20 stocks per applicant firm. The MPC may approve such an increase 
on a case-by-case basis. The BSE has represented that, during the 
pilot program, the total number of stocks subject to competition 
will not exceed 360. See Securities Exchange Act Release No. 32549 
(June 29, 1993), 58 FR 36229 (July 6, 1993).
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    Moreover, the BSE rules governing the auction market principles of 
priority, parity, and precedence remain unchanged.\8\ Thus, if the 
specialists are quoting the same price (i.e., they are on price 
parity), the earliest bid/offer at that price has time priority and 
will be filled first up to its specified size; and if the specialists 
are on both price and time parity, then all bids/offers equal to or 
greater than the size of the contra-side order are on parity and 
entitled to precedence over smaller ones (if it is possible to 
determine the order of time such orders were made, they shall be filled 
in that order).
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    \8\See BSE Rules Ch. II Sec. 6.
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    In addition to facilitating competition among the specialists, the 
proposal permits preferenced order routing. Orders may be directed to 
any specialist based on the request of the firm submitting the order, 
or, if a particular specialist is not specified, then the orders will 
be directed to the regular specialist.\9\ If an order is entered into 
BSE's automated order routing system (``BEACON'') by a member firm 
affiliated with a specialist, that order automatically will be routed 
to that member firm's affiliated specialist, thereby preventing member 
firms affiliated with a specialist from routing non-profitable orders 
through BEACON to the other specialist when market conditions are 
unfavorable.\10\
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    \9\As noted below, however, if the CS is quoting the ITS/BBO and 
clearly has established priority on the BSE floor, then the CS will 
fill the order despite the default routing to the regular 
specialist.
    \10\Conversation between Karen Aluise, Assistant Vice President, 
Boston Stock Exchange, and N. Amy Bilbija, Commission, on December 
14, 1993.
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    All limit orders in a pilot stock, regardless as to which 
specialist they are sent, will be represented and executed strictly 
according to time priority in BEACON. Once all limit orders at the 
Intermarket Trading System best bid or offer (``ITS/BBO'') or better 
are depleted, each specialist will be responsible for the market orders 
directed specifically to it. BEACON (which handles approximately 95% of 
all order flow on the BSE) will execute automatically\11\ an incoming 
order against an order on the book, and only if there is no contra-side 
agency order on the limit order book at the price will the incoming 
order be routed to the designated specialist for execution.
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    \11\BEACON will continue to expose all market and marketable 
limit orders (on the designated specialist's BEACON terminal) for 15 
seconds, prior to automatic execution at the ITS/BBO, for possible 
price betterment.
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    In addition to the rules discussed above, the proposal outlines 
registration procedures and daily responsibilities for CSs. All 
competing specialists will be responsible for:

    a. Cooperating with the regular specialist regarding openings 
and reopenings to ensure that they are unitary;
    b. Keeping each other informed and communicating to inquiring 
floor brokers the full size of any executable ``all or none'' orders 
in their possession and representing such orders on a best efforts 
basis to ensure the execution of the entire order at a single price 
or prices, or not at all;
    c. Communicating their markets to the regular specialist and 
being responsible for their portion of the published bid and/or 
offer; and
    d. Conforming generally to all of the rules and policies 
applicable to a regular specialist.

To register as a CS the applicant must submit a written application to 
the Market Performance Committee (``MPC''), listing in order of 
preference the stock(s) in which the applicant requests to compete. The 
MPC will then review the application\12\ considering the following 
factors:
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    \12\The decision of the MPC may be appealed to the Executive 
Committee.

     Overall performance evaluation results of the 
applicant;
     Financial capability;
     Adequacy of manpower on the floor;
     Existence of an adequate information barrier policy in 
the applicant firm;\13\ and
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    \13\If the MPC finds that an applicant firm does not have 
adequate information barrier procedures in place, it will deny that 
firm status as a CS. Conversation between Karen Aluise, Assistant 
Vice President, and N. Amy Bilbija, Commission, on March 7, 1994. As 
noted above, the specific requirements for adequate information 
barrier procedures are set forth in a separate proposal that is also 
being approved in conjunction with this approval order.
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     Objection by the regular specialist in a stock, with or 
without cause.\14\

    \14\Any objection by the regular specialists to permit 
comptition in one or more of such specialist's stocks must be in 
writing and filed with the Exchange within 48 hours (unless the 
specialist is unavailable, in which case within 48 hours of becoming 
available) of notice of filing of the competing specialist 
application. Such an objection is not an automatic veto, but rather 
is merely a factor to be considered by the MPC in reviewing the 
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application.

In addition, all applicants must be registered with the Exchange as 
specialists and must meet the current minimum requirements set forth in 
chapter XV of the BSE rules, the minimum capital and equity 
requirements as set forth in Chapters VIII and XII of the BSE rules, 
and conform to all other performance requirements and standards set 
forth in the Rules of the Exchange.
    Any specialist seeking to terminate its status must so notify the 
MPC at least three business days prior to the desired effective date of 
such withdrawal from competition. Withdrawal from registration by a CS 
will bar that CS from applying to compete in that same stock for 90 
days following the effective date of withdrawal. When the regular 
specialist requests to be relieved of a stock, the stock will be posted 
for reallocation by the Stock Allocation Committee. In the interim, if 
the MPC is satisfied that the CS can continue to maintain a fair and 
orderly market in such stock, the CS will serve as the regular 
specialist until the stock has been reallocated.\15\ Where there is 
more than one CS in the stock, Exchange staff will place the stock with 
a caretaker\16\ until reallocation.
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    \15\Once the stock has been reallocted to a regular specialist, 
that specialist will not have the right to object to competition in 
such stock.
    \16\A ``caretaker'' is a specialist from another specialist unit 
who is chosen by the Exchange to temporarily act as the regular 
specialist.
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    The registration of any CS may be suspended or terminated by the 
MPC upon a determination of any substantial or continued failure by 
such CS to engage in dealings in accordance with the Constitution and 
Rules of the Exchange.
    Finally, the proposal amends the BSE Rule governing the 
specialist's book, the contents of which are otherwise confidential, to 
add a provision permitting specialists to disclose information in their 
books to other specialists competing in the same stocks on a summary 
basis as provided for in the procedures for CSs.

III. Summary of Comments

    The Commission has received comment letters on the proposal from 
the American Stock Exchange (``Amex),\17\ Chicago Stock Exchange 
(``CHX''),\18\ Cincinnati Stock Exchange (``CSE''),\19\ and New York 
Stock Exchange (``NYSE''),\20\ as well as BSE's responses thereto.\21\ 
The letters (with the exception of the CSE) raise similar concerns with 
the BSE proposal about the preferencing feature, internalization of 
order flow, payment for order flow, adequate information barrier 
procedures, and the overall effect on auction market principles.\22\ 
These comments are discussed in more detail below.
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    \17\See letters from Jules L. Winters, Chief Operating Officer, 
Amercian Stock Exchange, to Jonathan G. Katz, Secretary, Commission, 
dated August 26, 1993 (``Amex letter 1'') and March 18, 1994 (``Amex 
letter 2'').
    \18\See letter from Homer J. Livingston, President and Chief 
Executive Officer, Chicago Stock Exchange, to Jonathan G. Katz, 
Secretary, Commission, dated December 10, 1993 (``CHX letter'').
    \19\See letter from Robert P. Ackermann, Vice President, 
Regulation, Cincinnati Stock Exchange, to Jonathan G. Katz, 
Secretary, Commission, dated July 29, 1993 (``CSE letter''). In sum, 
the CSE argues that because their current Dealer Preferencing System 
is analogous to the BSE proposal, the same restrictions should be 
applied to both pilots, or, in the alternative, the Commission 
should remove the restrictions from the CSE pilot. The restrictions 
include prohibitions on direct cash payments for preferenced order 
flow, prohibitions on use of short-sale arbitrage programs, and 
limitations on the scope of the program. All of these restrictions 
have been incorporated into the BSE proposal. See Amendments Nos. 1, 
2, and 3.
    \20\See letters from James E. Buck, Senior Vice President and 
Secretary, New York Stock Exchange, to Jonathan G. Katz, Secretary, 
Commission, dated August 25, 1993 (``NYSE letter 1''); and Daniel 
Parker Odell, Assistant Secretary, New York Stock Exchange, to 
Jonathan G. Katz, Secretary, Commission, dated October 29, 1993 
(``NYSE letter 2'').
    \21\See letters from Karen A. Aluise, Assistant Vice President, 
Boston Stock Exchange, to Jonathan G. Katz, Secretary, Commission, 
dated July 30, 1993 (``BSE letter 1''); John I. Fitzgerald, 
Executive Vice President, Legal Affairs and Trading Services, Boston 
Stock Exchange, to Jonathan G. Katz, Secretary, Commission, dated 
September 16, 1993 (``BSE letter 2'') and November 10, 1993 (``BSE 
letter 3'').
    \22\The CSE, Amex, and NYSE also recommended that the issue of 
competing specialist should be made part of the Market 2000 Study 
along with the Amex competing dealer proposal. Division of Market 
Regulation, U.S. Securities and Exchange Commission, Market 2000: An 
Examination of Current Equity Market Developments (1994). The Amex's 
competing dealer proposal seeks to alter the current rules of 
priority in regard to the orders of regional exchange specialists 
and third market makers that are directed to the Amex. The issues 
raised in Amex's competing dealer proposal are fundamentally 
different from the concerns raised by the competing specialist 
proposal which seeks to alter the current rules to accomodate 
competitors on the floor of the BSE. Specifically, the Amex's 
proposal is intended to alter the treatment of incoming orders from 
competing dealers, while the BSE proposal creates the ability for 
competing specialists to compete on the floor of the Exchange.
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A. Preferencing

    All four commentators attempted to draw an analogy between the 
Cincinnati Dealer Preferencing Program (``CSE pilot'')\23\ and the BSE 
proposal by alleging that the latter is in fact a preferencing system 
despite the lack of a reference to the term ``preferencing'' in the 
proposal.\24\ The NYSE also alleges that although the BSE rules 
currently provide for the same auction market procedures as NYSE Rule 
72, the competing specialist proposal effectively would change those 
procedures by always giving priority to the designated specialist when 
no other contra-side agency orders are present.\25\ The BSE, in 
response, asserts that their priority, parity, and precedence rules 
work the same way as the NYSE rules did, when competing specialists 
were permitted on their floor, in that a BSE specialist quoting the 
ITS/BBO would have priority over the other specialist who is quoting an 
inferior market.\26\
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    \23\The CSE pilot originally was approved as a six month pilot 
for 60 issues per preferencing dealer. See Securities Exchange Act 
Release No. 28866 (February 13, 1991), 56 FR 5854 (February 7, 
1991). It was subsequently extended several times and is currently 
approved through August 7, 1994. The number of CSE issues which a 
dealer may preference has been increased periodically to 350. See 
Securities Exchange Act Release Nos. 29885 (October 30, 1991), 56 FR 
56676; 30353 (February 7, 1992) 57 FR 5918; 30809 (June 15, 1992) 57 
FR 27990; 31011 (August 7, 1992), 57 FR 38704; 32280 (May 7, 1993) 
58 FR 28422; 33975 (April 28, 1994).
    \24\See NYSE letter 1; NYSE letter 2; CSE letter; CHX letter; 
Amex letter 2.
    \25\See NYSE letter 2.
    \26\See BSE letter 2.
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B. Internalization

    Internalization of order flow is the ability of diversified firms 
to retain incoming customer orders by routing them to their affiliated 
specialist for execution, thereby participating on both sides of the 
transaction. The NYSE asserts that the BSE proposal could lessen 
auction market depth and efficiency because the preferenced order flow 
is internalized by specialists, does not participate in the auction 
market, and is executed outside of it.\27\ The NYSE and Amex further 
maintain that by allowing internalization of order flow, the BSE 
proposal will diminish the efficiencies of auction market pricing by 
denying preferenced orders any exposure to the primary market and 
opportunity for price betterment thereon, and ultimately will lead to 
market fragmentation.\28\
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    \27\See NYSE letter 1.
    \28\See Amex letter 1; Amex letter 2; NYSE letter 1.
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    The NYSE believes the Commission should weigh possible positive 
effects of competing specialists, such as fostering competition, 
against the potential negative effects, such as distortion of the 
auction market, and encourages the Commission to undertake a more 
comprehensive study of preferencing in order to determine whether or 
not it works to the benefit of the investing public.\29\ In response, 
the BSE suggests that competition will heighten as the competing 
specialists strive to establish priority on the BSE floor.\30\ 
Moreover, according to the BSE, liquidity in the national market will 
increase at the ITS/BBO because (1) the competing specialists will be 
forced to quote at the ITS/BBO to retain priority, and (2) the BSE 
quote disseminated when two or more specialists are simultaneously 
bidding at the same price will reflect their aggregated size.\31\
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    \29\See NYSE letter 1; See also Amex letter 2.
    \30\Consistent with traditional auction market principles, the 
only instance where preferencing would force a competitor with 
clearly established priority on the BASE floor to step aside to a 
preferenced order is when the ITS/BBO is greater than the BSE BBO. 
In such a circumstance, the BSE specialist does not have priority at 
the ITS/BBO and therefore BEACON will route the order to whomever is 
the designated specialist. Conversation between Karen Aluise, 
Assistant Vice President, Boston Stock Exchange, and N. Amy Bilbija, 
Commission, on December 16, 1993.
    \31\The Commission notes that the BSE is aware that it may not 
aggregate auto-quotes for dissemination in ITS because auto-quoting 
in size is not permitted under the ITS Plan. An auto-quote is a 
systemic pricing change mechanism that generally tracks on the 
primary market.
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    The NYSE and Amex also note that the BSE system in theory requires 
marketable customer limit orders to be cleared before a preferenced 
specialist can trade with its own order flow.\32\ The NYSE and Amex 
maintain, however, that there is nothing to prevent BSE member firms 
from withholding their limit orders from the market, and sending them 
down to the exchange floor only when they have become marketable, at 
which time they are paired off against the affiliated specialist for 
execution.\33\ The NYSE and Amex further assert that BSE firms with 
affiliated specialists would be motivated to act in such a fashion 
because they would be providing each organization an ongoing 
opportunity to trade as principal with its customers' market 
orders.\34\ The BSE, however, maintains that BEACON will not 
accommodate such a practice because the system does not accept paired 
orders (where one side is an agency order and one side is a BSE market 
maker as principal).\35\
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    \32\See NYSE letter 1; Amex letter 2.
    \33\See NYSE letter 2; Amex letter 2.
    \34\See NYSE letter 2; Amex letter 2.
    \35\Conversation between Karen Aluise, Assistant Vice President, 
Boston Stock Exchange, and N. Amy Bilbija, Commission, on February 
14, 1994. The Commission notes that the practice of withholding 
limit orders may be inconsistent with achieving best execution of 
customer orders and may unnecessarily interpose a dealer into an 
agency transaction. See 15 U.S.C. 78k-1(a)(1)(C)(v) (1988).
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    The BSE states, and the NYSE notes, that all BSE market and 
marketable limit orders routed to a designated specialist will still 
continue to be exposed for 15 seconds to allow the specialist to 
execute the order at a price better than the ITS/BBO before automatic 
execution at the ITS/BBO.\36\
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    \36\In contrast, the NYSE asserts that in the CSE pilot agency 
at-the-market and marketable limit orders are executed immediately 
and automatically at the ITS/BBO without exposure for price 
betterment. See NYSE letter 1.
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    Finally, the Amex further asserts that increased internalization 
resulting from the BSE proposal will lead to more order flow to the 
BSE, which will in turn increase the amount of risk incurred by BSE 
specialists. As a result, the Amex alleges, BSE specialists will ``lay 
off'' their risk on the primary market specialist by means of 
offsetting executions following a BSE transaction,\37\ thus increasing 
the risk factor to the Amex specialists. The Amex concludes that this 
potential increased risk, and the desire to foster protection of 
customer orders, is the basis for its pending competing dealer 
proposal.
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    \37\See Amex letter 2.
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C. Effect on Auction Market Principles

    The NYSE and Amex assert that the proposal represents a departure 
from agency/auction principles and a movement toward ``dealerization'' 
of regional exchange markets by encouraging firms to set up CSs in 
order to internalize preferenced order flow which is thereby denied the 
chief benefits of auction market trading.\38\ The Amex further asserts 
that:
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    \38\See Amex letter 1.

    This development can only increase concerns * * * regarding 
regional exchange market making in primary exchange listed 
securities--namely, increased market fragmentation, passive 
quotations and autoquoting, failure to enhance price discovery and 
provide price betterment, and failure to reflect full bid/offer 
size.\39\
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    \39\See Amex letter 1 (citing the Amex Market 2000 comment 
letter, pp. 14-17).

    The Amex also does not believe the BSE proposal will benefit the 
investing public, asserting that for most securities there is little 
evidence to support the proposition that increasing the number of 
market making participants increases competition and provides price 
betterment.\40\
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    \40\See Amex Letter.
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    The CHX letter, although more of a commentary on the CSE pilot than 
on the BSE proposal, reaches the conclusion that it would be 
inconsistent for the Commission to permit the CSE pilot to operate 
without permitting the more traditional exchanges to compete by 
providing similar systems of their own.\41\ In addition, the CHX takes 
the position that the BSE proposal is a type of preferencing system, 
but contains fewer negative aspects than does CSE's pilot. Therefore, 
the CHX believes it would be illogical to permit the CSE pilot to 
continue while disapproving the BSE proposal.\42\
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    \41\See CHX letter.
    \42\See CHX letter.
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D. Payment for Order Flow

    Both the CSE pilot and the BSE proposal include a prohibition 
against cash payments, by preferencing market makers and CSs 
respectively, for preferenced order flow.\43\ The NYSE suggest that the 
BSE's restriction may be broader than the CSE's because it appears to 
apply to regular specialists as well as CSs.\44\ The BSE response, 
however, emphasized that its restriction only applies to a CS in those 
stocks in which he becomes registered as a CS. The NYSE, Amex, and BSE, 
however, concur that the Commission should address the payment for 
order flow issue on a national level. The NYSE suggests that the 
Commission prohibit all dealers and specialists in all markets from 
paying for order flow.\45\ The BSE response advocated a clear standard 
for all industry participants, suggesting that the Commission either 
prohibit all dealers and specialists in all markets from paying for 
order flow or allow all such market participants to decide the issue 
for themselves.\46\ The Amex agreed with the BSE in so far as the issue 
should be addressed in a conceptually consistent manner rather than a 
piecemeal approach.\47\
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    \43\See Securities Exchange Act Release No. 28866 (February 7, 
1991), 56 FR 5854 (February 13, 1991); and Securities Exchange Act 
Release No. 33089 (October 22, 1993), 58 FR 58205 (October 29, 
1993).
    \44\See NYSE letter 2, FN 2.
    \45\See NYSE letter 1; NYSE letter 2.
    \46\See BSE letter 2; BSE letter 1; BSE letter 3.
    \47\See Amex letter 1.
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E. Information Barriers

    The NYSE and Amex commented on the BSE's original requirement that 
competing specialists affiliated with upstairs firms must have and 
maintain appropriate information barrier procedures as approved by any 
SRO, noting that the BSE had no actual rules in place on the 
establishment or enforcement of such procedures.\48\ In response, the 
BSE separately filed information barrier procedures with the 
Commission.\49\
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    \48\See NYSE letter 1; Amex letter 1. The NYSE's Rule 98 and the 
Amex's Rule 193 are those exchanges' procedures that deal with 
integrated, or diversified, number firms acting as specialists on 
the primary markets.
    \49\See Securities Exchange Act Release No. 33090 (October 22, 
1993), 58 FR 58206 (October 29, 1993). That proposal is being 
approved concurrently with the instant proposed rule change.
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IV. Discussion

    For the reasons discussed below, the Commission is approving the 
BSE competing specialist proposal on a one-year pilot basis. During the 
pilot the BSE will be required to monitor the pilot, collect data, and 
submit reports as outlined below.
    As a preliminary matter, the Commission supports efforts by 
exchanges to provide increased market making and competition on their 
trading floors or trading systems. Such efforts should increase the 
provision of liquidity services by an exchange and enable it to compete 
more effectively with other markets. The addition of specialist 
competition on the BSE floor could help in this regard. At the same 
time, the Commission is sensitive to the concerns of many of the 
commentators about the structural implications of the preferencing 
feature of the BSE proposal. The Commission believes that it is 
important that the competing specialist program provide real quote 
competition for the benefit of investors, and not simply a means for 
firms to internalize their customer order flow while receiving 
specialist designation and treatment. Accordingly, as discussed in more 
detail below, the Commission only is approving the BSE proposal on a 
one-year pilot basis. During that time, the BSE is expected to monitor 
its pilot and provide the Commission with a report on its operation 
detailing how the proposal has affected the quality of BSE's market, 
including its effect on quote competition. The Commission expects the 
BSE to adequately demonstrate, through the periodic reporting 
requirements outlined below and other such data as the Exchange may 
wish to generate, that there are in fact beneficial competitive effects 
from the CS program. Specifically, the Commission expects the Exchange 
to analyze the effects of the program on the quality of the market 
making by BSE specialists as a result of competition. For the reasons 
outlined below, if the BSE cannot provide such an analysis, the 
Commission would have serious reservations about continuing the 
preferencing feature of the program.
    As discussed above, many of the commentators discussed their views 
on CSE's preferencing pilot in commenting on the BSE proposal and made 
certain conclusions about the effects of the BSE's proposal based on 
the experience with the CSE preferencing pilot. Although the Commission 
believes the discussion is useful, we note that the CSE differs in 
market structure and in the details of the preferencing system. Under 
the CSE's pilot, preferenced dealers have priority over same-priced 
market maker or professional agency interest entered prior in time when 
the preferenced dealer is interacting with the public agency market and 
marketable limit orders that he or she represents as agent.50 
Further, the CSE system does not currently provide for exposure for 
orders that would allow for potential price improvement on incoming 
orders. Instead, price improvement on the CSE is only possible if the 
CSE dealer either (1) unilaterally improves the price before sending 
the cross to the CSE for execution, or (2) voluntarily exposes the 
improved order to the national consolidated quote system for possible 
improvement before filling it at the ITS/BBO.
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    \5\0See Securities Exchange Act Release No. 28866 (February 7, 
1991), 56 FR 5854 (February 13, 1991).
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    The BSE has attempted to design its proposal to enable customers to 
receive best execution of their orders while stimulating competition 
among specialists. As previously stated, the proposal does not alter 
the auction market principles of priority, parity, and precedence. In 
addition, limit orders will continue to be executed in accordance with 
traditional auction market principles. Under the BSE proposal, all 
limit orders will be represented and executed strictly according to 
time priority according to the order of their receipt in Beacon, 
irrespective of which specialist they are sent to. Further, all market 
and marketable limit orders will continue to receive a 15 second 
exposure for possible price improvement.51 Before an incoming 
preferenced order is executed against the specialist, Beacon scans its 
limit order book. If there is a contra-side order on the book, Beacon 
will match up the two orders and execute without the specialist's 
participation (unless the specialist opts to improve the price).
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    \5\1See Division of Market Regulation, U.S. Securities and 
Exchange Commission, Market 2000: An Examination of Current Equity 
Market Developments, Study V (1994) (``Market 2000 Study'').
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    The BSE proposal also is designed to provide for potential quote 
competition. The only time the BSE's proposed preferencing feature can 
force a non-designated specialist with clearly established priority on 
the BSE floor to yield priority to a preferenced competitor, so that it 
may trade as principal with the incoming preferenced order, is when (1) 
the ITS/BBO is greater than the BSE BBO, and (2) there is no contra-
side agency order priced equal to or better than the ITS/BBO (i.e., all 
limit orders at the price have been depleted). The BSE asserts that 
this will enhance quote competition and, at a minimum, add liquidity at 
the ITS/BBO.
    The Commission recognizes that BSE specialists currently quote at 
the best ITS price only 5% of the time.52 The proposal, however, 
allegedly provides an incentive for specialists desiring to attract 
order flow to quote more often at the ITS/BBO. If the BSE's assertion 
is correct in that the specialists will be motivated to compete for 
priority on the floor, then liquidity could be enhanced at the ITS/BBO. 
In addition, if the specialists are simultaneously bidding at the same 
price, the sizes will be aggregated for purposes of disseminating the 
BSE quote.53 In sum, the proposal potentially could add depth at 
the ITS/BBO if the BSE specialists begin to quote at the best ITS price 
more frequently than is the practice today, and thereby improve the 
overall quality of the BSE market place. Although it is unclear whether 
the BSE proposal will have this result, the Commission intends to 
carefully evaluate the effects on the quality of the BSE market from 
this potential ``quote competition'' and whether the majority of 
preferenced orders are executed by the affiliated specialist when 
quoting at less than the ITS/BBO. As indicated above, the Commission 
expects the BSE to provide sufficient evidence confirming the existence 
of enhanced quote competition.
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    \5\2Conversation between Jack Fitzgerald, Executive Vice 
President, Bill Lee, Senior Vice President, Karen Aluise, Assistant 
Vice President, and Ken Meaden, Assistant Vice President, Boston 
Stock Exchange, and N. Amy Bilbija, Commission, on December 29, 
1993.
    53But see note 32, supra.
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    With respect to the BSE proposal's effect on internalization of 
order flow, and the potential for market fragmentation as a result, the 
Commission's Division of Market Regulation (``Division'') recently 
examined the extent of market fragmentation in its Market 2000 Study. 
The Division found that multiple, varied market centers and competitors 
for listed stocks has provided many benefits to the users of the 
markets without impairing market quality or price discovery. The 
Division concluded that concerns about fragmentation have been 
overstated. However, the Commission is concerned that the 
implementation of a preferencing system at one or more exchanges may 
alter the analysis.
    The potential effects of internalization by BSE specialists, 
however, are difficult to analyze without some experience about the 
effects of the pilot. The Commission does note that if the program of 
competing specialists is used merely to expand the number of 
specialists internalizing order flow rather than as a means of 
improving the quality of BSE markets, then the proposal would raise 
additional questions as to whether the competing specialists are acting 
as active market makers and deserve specialist designation and the 
benefits accruing thereto. Accordingly, although the BSE proposal may 
result in more internalization of order flow, the Commission is not 
willing at this time to conclude that it will be detrimental to the 
quality of the equity markets, but instead intends to revisit this 
issue at the expiration of the pilot. In reaching this conclusion, the 
Commission emphasizes that the BSE proposal is limited in scope, and 
best execution of customer orders in the context of fair competition is 
still a primary objective. Under the proposal, customer orders will 
continue to be able to interact, and the opportunity for price 
improvement exists.
    The preferencing feature of the competing specialist program also 
raises questions about the use of payment for order flow by BSE 
specialists. As discussed previously, during the pilot program a CS 
will be prohibited from making cash payments for order flow in those 
stocks in which it is registered as a CS. Such a prohibition is 
important to assess the effects of the proposal and incentives for 
market participants to take part in it and to benefit therefrom. The 
Commission is still considering the concerns regarding the issue of 
payment for order flow on the national level. On October 7, 1993, the 
Commission published for comment Rule 11Ac1-3 and amendments to Rule 
10b-10 under the Act relating to enhanced disclosure of payment for 
order flow practices. The Commission also sought comments on various 
alternative approaches to payment for order flow, such as banning the 
practice outright, pass-through the payment to customers, and 
decimalization.\54\ Accordingly, any final outcome in that rule making 
procedure may ultimately effect the payment for order flow issue in the 
BSE's pilot.
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    \54\See Securities Exchange Act Release No. 33026 (October 6, 
1993). The comment period on the proposal ended December 3, 1993, 
and the Commission is still reviewing the comments and issues 
presented.
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    Finally, as discussed above, the Commission also is approving today 
information barrier procedures for BSE specialists. These procedures 
ensure that upstairs firms affiliated with BSE specialists will not 
receive information advantages due to the relationship between the 
entities.\55\
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    \55\See Securities Exchange Act Release No. 34-34076 (May 18, 
1994) approving BSE's information barrier proposal.
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    Based on the above, the Commission believes it is appropriate to 
allow the BSE to implement its competing specialist proposal on a one-
year pilot basis. In making this determination, the Commission has 
carefully analyzed the potential benefits from competition, such as 
better quotes, with the potential for increased internalization of 
order flow. The Commission believes that the BSE has incorporated 
features in its proposal to allow it to implement, for a one-year 
period, a competing specialist system that will allow firms to 
designate order flow to an affiliated specialist.
    The Commission, nevertheless, believes that before the BSE proposal 
will be extended beyond the one-year pilot period or approved on a 
permanent basis, the BSE will have the burden to prove that its 
proposal resulted in added depth and liquidity to its market and 
improved quotations. The Commission emphasizes that if the Commission 
is dissatisfied with the data or the market effects of the pilot, it 
would not be inclined to extend the competing specialist program. 
Accordingly, the Commission requests that the BSE provide, on a 
quarterly basis, the following information:

    1. A list indicating how many competing specialists are on the 
Exchange.
    2. A list identifying, for each competing specialist, the issues 
in which they are competing.
    3. The volume of ``preferenced'' trades in each issue; and the 
percentage of total volume of trades sent to the BSE for execution 
in each issue represented by ``preferenced'' volume.
    4. The volume of ``preferenced'' share and transaction volume; 
and the percentage of total BSE share and transaction volume the 
``preferenced'' volume represents.
    5. BSE's volume attributable to ITS commitments sent by other 
ITS participant markets; and the percentage of such commitments 
attributable to ``preferenced'' issues.
    6. The number of ``preferenced'' orders executed by the non-
designated specialist(s).
    7. The number of ``preferenced'' orders effected against the 
limit order book, both in total and separately for each 
``preferenced'' issue.
    8. The number of limit orders placed on the book, as compared to 
before the commencement of this pilot, both for the BSE as a whole 
and separately for the stocks for which there are competing 
specialists.
    9. BSE's share of Tape trade reports, as compared to before the 
commencement of this pilot.

    Further, we request the Exchange to submit a report to the 
Commission, discussing the data outlined above, eight months from the 
date of commencement of the competing specialist pilot. The report 
should discuss such data in terms of the effects of the competing 
specialist pilot on the quality of the BSE market with respect to 
depth, liquidity, and quote improvement.\56\
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    \56\Should any other exchange attempt to implement a similar 
system that is acceptable to the Commission, it should be noted that 
the pilot period would be limited to the same one year period 
afforded the BSE. At the end of such period, all such systems will 
be subject to the same rigorous scrutiny regardless of how long they 
may have been in operation.
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V. Conclusion

    The Commission finds preliminarily that the proposed rule change is 
consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange, 
and, in particular, with the requirements of section 6(b).\57\ In 
particular, the Commission preliminarily believes the proposal is 
consistent with section 6(b)(5) because it is designed to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to and perfect the mechanism of 
free and open market and a national market system.
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    \57\15 U.S.C. 78f(b) (1988).
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    It is Therefore Ordered, pursuant to section 19(b)(2) of the 
Act,\58\ that the proposed rule change (SR-BSE-93-12) is approved for a 
period of one year through May 18, 1995.
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    \58\15 U.S.C. 78s(b)92) (1988).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\59\
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    \59\17 CFR 200.30-3(a)(12) (1993).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-12739 Filed 5-24-94; 8:45 am]
BILLING CODE 8010-01-M