[Federal Register Volume 59, Number 129 (Thursday, July 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16372]


[[Page Unknown]]

[Federal Register: July 7, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-34277; File No. SR-NASD-92-12]

 

Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc.; Order Granting Temporary Approval and Notice of Filing 
and Order Granting Accelerated Approval of Amendment No. 8 of Proposed 
Rule Change Creating a Short Sale Bid-Test for Nasdaq National Market 
Securities

June 29, 1994.

I. Introduction

    On July 22, 1992, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association'') filed with the Securities and 
Exchange Commission (``SEC'' or ``Commission'') a proposed rule change 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'')\1\ and Rule 19b-4 thereunder.\2\ The rule change creates, on 
a temporary basis for eighteen months, a short sale rule or ``bid-
test'' for Nasdaq Stock Market (``Nasdaq'') National Market 
Securities\3\ that will prohibit short sales at or below the current 
inside bid as shown on the Nasdaq screen when that bid is lower than 
the previous inside bid. The rule provides certain exemptions, 
including an exemption for qualified Nasdaq market makers, options 
market makers, and warrant market makers. The rule also provides 
exemptions similar to those provided under the Commission's short sale 
rule, Rule 10a-1.\4\ Further, the NASD has submitted three 
interpretations regarding ``bona fide'' market making activity, the 
prices at which ``legal'' short sales may be effected, and examples of 
conduct that will be deemed to be in violation of the rule; these 
interpretations are part of the proposed rule change.
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    \1\15 U.S.C. Sec. 78s(b)(1) (1988).
    \2\17 CFR 240.19b-4 (1994).
    \3\Nasdaq includes both Nasdaq SmallCap Market and Nasdaq 
National Market securities. In July 1993, the NASD began referring 
to Nasdaq National Market System or Nasdaq NMS securities as Nasdaq 
National Market securities.
    \4\17 CFR 240.10a-1.
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    Notice of the proposed rule change and subsequent amendments 
appeared in the Federal Register.\5\ The Commission received 397 
comments in response to the release, 122 in support and 275 in 
opposition.\6\ In addition to amending the proposal several times, the 
NASD responded to issues raised by the commenters in a letter dated 
June 24, 1993.\7\ For the reasons discussed below, the Commission is 
approving the proposal, effective September 6, 1994, on a temporary 
basis through March 5, 1996.
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    \5\The NASD amended the proposed rule change eight times since 
it was originally filed with the Commission on April 9, 1992. The 
first two amendments were included in the Commission's original 
notice. Securities Exchange Act Release No. 31003 (Aug. 6, 1992), 57 
FR 36421 (Aug. 13, 1992). The NASD submitted Amendment No. 3 on 
December 23, 1992, Securities Exchange Act Release No. 31729 (Jan. 
13, 1993), 58 FR 5791 (Jan. 22, 1993), Amendment No. 4 on November 
19, 1993, Securities Exchange Act Release No. 33289 (Dec. 3, 1993), 
58 FR 64994 (Dec. 10, 1993), Amendment No. 5 on January 14, 1994, 
Amendment No. 6 on March 8, 1994, Securities Exchange Act Release 
No. 33758 (Mar. 11, 1994), 59 FR 13016 (Mar. 18, 1994) (Amendment 
No. 6 replaced Amendment No. 5, which was not published for 
comment), and Amendment No. 7 on May 16, 1994, Securities Exchange 
Act Release No. 34092 (May 20, 1994), 59 FR 27634 (May 27, 1994). On 
June 29, 1994, the NASD submitted Amendment No. 8 requesting 
approval of the rule on a temporary basis for eighteen months beyond 
the effective date of the rule and amending Interpretation C to 
clarify that moving a bid up or down and then moving it back to the 
original bid simply to create an up bid or down bid to facilitate or 
preclude short selling will be considered a manipulative act and a 
violation of the rule.
    \6\A list of comment letters received in connection with the 
publication of the rule change is available for inspection in the 
Commission's Public Reference Room.
    \7\Letter from Richard Ketchum, Executive Vice President and 
Chief Operating Officer, NASD, to Jonathan G. Katz, Security, SEC 
(June 24, 1993).
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II. Description of the Rule

A. Background

    The opportunity for short selling can add to market liquidity and 
pricing efficiency, while at the same time can raise general anti-
manipulation concerns. Currently, neither the Commission nor the NASD 
imposes any general restriction on short selling of OTC securities. 
This contrasts with short sale restrictions on exchange-listed 
securities that have been in place since 1938. In general, the 
Commission's short sale rule, Rule 10a-1, provides that short sales of 
securities may be effected only at a price above the price at which the 
immediately preceding sale was effected (``plus-tick'') or at a price 
equal to the last sale if the last preceding transaction at a different 
price was at a lower price (``zero-plus-tick'').
    The NASD proposes to add two sections to Article III of the Rules 
of Fair Practice establishing a short sale rule based on a ``bid-test'' 
for Nasdaq National Market securities.\8\ The first section will 
prohibit members from effecting short sales at or below the bid for 
themselves or their customers when the current inside or best bid is 
below the previous bid, unless one of the exemptions applies. The 
second section provides a definition of ``primary Nasdaq market maker'' 
which, beginning one year after the effective date of the rule, sets 
forth the criteria a market maker must satisfy to be exempt from the 
rule. In addition, the NASD submitted three interpretations setting 
forth: (a) what will constitute ``bona fide market making activity;'' 
(b) the prices at which ``legal'' short sales may be effected; and (c) 
situations that will be deemed to be indirect violations of the rule.
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    \8\The rule will be in effect during normal, domestic market 
hours (9:30 a.m. to 4 p.m. Eastern Time).
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    The proposed rule also contains a limited exemption from the short 
sale prohibition for market makers. In addition, in response to 
concerns raised by commenters, the NASD submitted a number of 
amendments providing limited exemptions for options market makers and 
warrant market makers satisfying certain requirements, and clarifying 
that bona fide market making includes, under certain conditions, risk 
arbitrage activity. The exemptions are designed to allow short selling 
where necessary to conduct efficient and effective market making 
activities without allowing unrestricted short selling. During the 
eighteen-month period of effectiveness of the rule, the NASD will study 
the impact of the rule and its exemptions and, prior to the rule's 
expiration, the NASD will evaluate whether the rule and its exemptions 
should be extended, modified, approved on a permanent basis, or 
terminated. If the NASD decides to extend, modify or approve on a 
permanent basis any part or all of the rule, it must obtain Commission 
approval pursuant to Section 19(b) of the Act.\9\
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    \9\15 U.S.C. Sec. 78s (b)(1).
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B. The General Rule and Exemptions

    The NASD's bid-test rule will prohibit NASD members from effecting 
a short sale in a security at or below the current inside bid when this 
bid is below the preceding best bid.\10\ This prohibition applies 
equally to trades for customers and to trades for the member's own 
account.\11\ The rule, however, sets forth ten exemptions. Seven of 
these exemption mirror the exceptions provided under the Commission's 
short sale rule.\12\ The three additional exemptions provide an 
exemption for bona fide market making activity by qualified market 
makers, hedge transactions by options market makers registered as 
qualified options market makers, and hedge transactions resulting in 
fully hedged positions by warrant market makers registered as market 
makers for the warrant.
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    \10\As set forth in Interpretation B, the NASD has determined 
that in order to effect a ``legal'' short sale when the current best 
bid is lower than the preceding best bid the short sale must be 
executed at a price of at least \1/16\th point above the current 
inside bid. The last sale report of such a trade would, therefore, 
be above the inside bid by at least \1/16\th point. Moreover, the 
NASD believes that requiring short sales to be a minimum increment 
of \1/16\th point above the bid ensures that transactions are not 
effected at prices inconsistent with the underlying purpose of the 
rule.
    \11\In Interpretation C, the NASD provides examples of 
circumstances under which a member would be deemed to be in 
violation of the rule. For example, if a market maker moves its bid 
up or down and then moves it back to the original bid simply to 
create an up bid or down bid to facilitate or preclude short 
selling, the NASD would consider this a manipulative act and a 
violation of the rule. In addition, if a market maker agrees to an 
arrangement proposed by a member or a customer where the market 
maker raises its bid in the Nasdaq system in order to effect a short 
sale for the other party and is protected against any loss on the 
trade or on any other executions effected at its new bid price, the 
market maker would be deemed to be in violation of the rule. 
Similarly, a market maker would be deemed in violation of the rule 
if it entered into an arrangement with a member or a customer 
whereby it used its exemption from the rule to sale short at the bid 
at successively lower prices, accumulating a short position, and 
subsequently offsetting those sales through a transaction at a 
prearranged price, for the purpose of avoiding compliance with the 
rule, and with the understanding that the market maker would be 
guaranteed by the member or customer against losses on the trades. 
The NASD believes that members' activities to circumvent the rule 
through indirect actions such as executions with other members or 
through facilitation of customer orders while being protected from 
loss are antithetical to the purposes of the rule. Accordingly, the 
NASD will consider any such activity as a violation of this section.
    \12\In particular, the NASD's exceptions found in XX(c)(2), (3), 
(4), (5), (6), (7) and (8) parallel 17 CFR 240.10a-1(e)(1), (2), 
(3), (4), (7), (8) and (10), respectively. The NASD's proposal does 
not include the Commission's exemptions found in 17 CFR 240.10a-
1(e)(5), (6), (11), (12) and (13); 17 CFR 240.10a-1(e)(9) is 
reserved for future use.
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1. The Qualified Market Maker Exemption
    The NASD received substantial comment from its members that 
application of a short sale rule to market makers would dramatically 
reduce their ability to adjust inventory positions quickly, thereby 
lessening liquidity throughout the marketplace. Thus, the NASD provided 
an exemption for qualified market makers satisfying certain criteria. 
To be exempt from the provisions of the rule, a market maker must be 
conducting bona fide market making activity\13\ and satisfy the 
criteria for a qualified market maker. The rule sets forth certain 
criteria for becoming a qualified market maker, which criteria change 
after the first year of the effectiveness of the rule. Under both the 
criteria applicable to the first year and those applicable to the last 
six months of the rule, general qualifications standards apply. The 
rule then sets forth separate criteria for becoming a qualified market 
maker for securities subject to a secondary offering,\14\ an initial 
public offering, or a merger or acquisition.
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    \13\A market maker executing a transaction on an agency basis 
would not be exempt from the rule with respect to that transaction.
    As indicated above, the NASD submitted three interpretations of 
the short sale rule. Interpretation A states, among other things, 
the factors the NASD will consider when determining whether certain 
market making activity may not be deemed bona fide market making 
activity and, therefore, ineligible for the qualified market maker 
exemption.
    First, the interpretation reiterates the express exclusion from 
the exemption for activity unrelated to market making functions, 
such as index arbitrage and risk arbitrage that is independent from 
a member's market making functions. The interpretation does, 
however, allow short sales of a security of a company involved in a 
merger or acquisition of the sale is made to hedge the purchase or 
prospective purchase (based on communicated indications of interest) 
of other security of a company involved in the merger or 
acquisition, which purchase was made, or is to be made, in the 
course of bona fide market making activity. Short sales made to 
hedge any such purchases or prospective purchases must be reasonably 
consistent with the exchange ratio (or exchange ratio formula) 
specified by the terms of the merger or acquisition.
    Similarly, the interpretation provides that bona fide market 
making activity would exclude speculative selling strategies that 
are disproportionate to the usual market making patterns of the 
member in that security. Furthermore, the interpretation indicates 
that the NASD does not anticipate that a firm could properly take 
advantage of its market maker exemption to effectuate such 
speculative or investment short selling decisions. Disproportionate 
short selling in a market making account to effectuate such 
strategies will be viewed by the NASD as inappropriate activity that 
does not represent bona fide market making and would therefore be in 
violation of the rule.
    \14\For secondary offerings, the NASD concluded that the time 
period after the announcement of the offering is so sensitive to 
short selling pressure that it established special time frames and 
eligibility criteria for primary market makers. In these situations, 
the stock of the issuer is currently being traded and the 
``overhang'' on the market of the new stock coming into the market 
from the offering makes the security particularly susceptible to 
short selling abuse. Such short selling can adversely affect the 
capitalization of the issuer, particularly of smaller issuers, whose 
securities often have less liquid secondary markets. The NASD 
believes that the heightened requirements should address the 
concerns about short selling by newly registered market makers in 
secondary offerings.
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    During the first year of the eighteen-month pilot period, a 
qualified market maker is defined as a market maker that has maintained 
quotations in the subject security continuously for the preceding 20 
business days.\15\ During the last six months of the eighteen-month 
pilot period, a qualified market maker is defined as a market maker 
satisfying the criteria for a primary Nasdaq market maker. To qualify 
as a primary Nasdaq market maker, market makers must satisfy at least 
two of the following three standards: (1) The market maker must be at 
the best bid or best offer as shown in the Nasdaq system no less than 
35 percent of the time; (2) the market maker must maintain a spread no 
greater than 102 percent of the average dealer spread; or (3) no more 
than 50 percent of the market maker's quotation updates may occur 
without being accompanied by a trade execution of at least one unit of 
trading.\16\ Alternatively, recognizing that overall volume is also 
indicative of quality market making, the NASD has proposed a 
supplemental criterion for becoming a primary market maker. Under the 
supplemental criterion, a market maker must satisfy one of the three 
criteria set forth above and account for 1\1/2\ times its proportionate 
share\17\ of volume in the stock.\18\
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    \15\During the first year of the effectiveness of the rule, the 
separate criteria for becoming a qualified market maker for 
securities subject to a secondary offering, an initial public 
offering, or a merger or acquisition are:
    (i) For secondary offerings, the offering has become effective 
and the market maker has been registered in and maintained 
quotations without interruption in the subject security for 40 
calendar days (between January 1, 1994 and May 31, 1994, the average 
time between filing and effective dates for secondary offerings 
reviewed by the NASD's Corporate Financing department was 34 
business (48 calendar) days);
    (ii) For initial public offerings, the market maker may register 
in the offering and immediately become a qualified market maker; and
    (iii) After a merger or acquisition has been publicly announced, 
a qualified market maker in one of the two affected securities may 
immediately register as a qualified market maker in the other merger 
or acquisition security.
    \16\During the last six months of the eighteen-month exemption 
period, the separate criteria for becoming a qualified market maker 
for securities subject to a secondary offering, an initial public 
offering, or a merger or acquisition are:
    (a) For secondary offerings:
    (i) the secondary offering has become effective and the market 
maker has satisfied the qualification criteria in the time period 
between registering in the security and the offering becoming 
effective; or
    (ii) the market maker has satisfied the qualification criteria 
for 40 calendar days.
    (b) For initial public offerings:
    (i) the market maker may register in the offering and 
immediately become a primary Nasdaq market maker if it is a primary 
Nasdaq market maker in 80% of the securities in which it has 
registered; provided however, that if, at the end of the first 
review period, the primary Nasdaq market maker has withdrawn on an 
unexcused basis from the security or has not satisfied the 
qualification criteria, it shall not be afforded a primary Nasdaq 
market maker designation on any subsequent initial public offerings 
for the next 10 business days; or
    (ii) the market maker registers in the stock as a regular Nasdaq 
market maker and satisfies the qualification criteria for the next 
review period.
    (c) After a merger or acquisition has been publicly announced, a 
primary Nasdaq market maker in one of the two affected securities 
may immediately register as a primary Nasdaq market maker in the 
other merger or acquisition security.
    \17\The rule provides that the NASD may change from time to time 
the proportionate volume necessary for a market maker to satisfy 
this test. If the NASD elects to change this criterion, the Act 
requires it to file a proposed rule change with the Commission.
    \18\For example, if there are 10 market makers in a stock, each 
has a proportionate share of 10 percent. Thus, a market maker 
seeking to qualify as a primary market maker under the alternative 
criteria must, in addition to satisfying one of the three criteria 
under the standard approach, account for at least 15 percent of the 
overall volume. For example, if a market maker maintains its bid or 
offer at the inside quote at least 35 percent of the time, but 
maintains a 1 point spread in the stock when the other dealers 
averaged a \3/4\ point spread and changed its quote three times on 
average for every trade, then the market maker would have to meet 
the proportionate volume test to qualify as a primary market maker.
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    Compliance with the criteria will be tracked through the Nasdaq 
system, which will enable market makers to review their status in each 
criterion in each stock, and will also provide members with notice of 
their compliance with the standards at set intervals.\19\ The NASD will 
monitor market makers for compliance with the primary market maker 
standards on a monthly review period. A market maker failing to satisfy 
the qualification criteria remains a market maker in the security,\20\ 
but is subject to the short sale limitations. The NASD will establish 
review procedures for market makers seeking reconsideration of their 
failure to satisfy the primary market maker standards. Because the 
primary market maker standards are objective, however, the NASD will 
limit requests for reconsideration to consideration of system failures, 
excused withdrawals, or related activity in derivative or convertible 
securities or derivative pricing mechanisms, as seen with foreign 
securities or ADRs, that may affect a market maker's compliance with 
the criteria.
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    \19\A market maker satisfying the criteria will be designated as 
a primary market maker in the Nasdaq system, with ``primary'' or 
``P'' designation displayed on the Nasdaq Workstation screen. In 
addition, to assist market participants' compliance with the 
proposed rule, indication of a market maker's primary market maker 
designation will be available through vendor services.
    \20\The requirements for registration as a Nasdaq market maker 
are set forth in the NASD Manual. NASD Manual, Schedules to the By-
Laws, Schedule D, Part V, Sec. 1, (CCH)  1818. These requirements 
are not affected by the NASD's bid-test proposal.
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2. The Options Market Maker Exemption
    The rule also provides an exemption for certain transactions by 
options market makers registered as qualified options market makers in 
stock options or qualified stock index options. With certain 
restrictions, the exemption permits members to execute short sales for 
the account of qualified options market makers that would otherwise be 
prohibited by the rule. To be eligible for the exemptions, the short 
sale must satisfy the criteria for an ``exempt hedge transaction'' and 
the market maker must be designated a qualified options market maker.
    The rule provides separate definitions of ``exempt hedge 
transaction'' for market making in stock options and stock index 
options. For stock options, the term means a short sale of an 
underlying security to hedge an existing offsetting options position or 
an offsetting options position that was created ``contemporaneous with 
the short sale.''\21\ For stock index options, an exempt hedge 
transaction means a short sale to hedge an existing offsetting stock 
index options position or an offsetting stock index options position 
that was created contemporaneously with the short sale, provided that: 
(a) The security sold short must be a component security of the index 
underlying such index option; (b) the index underlying such offsetting 
index options position must be a ``qualified stock index'';\22\ and (c) 
the dollar value of all exempt short sales effected to hedge the 
offsetting stock index options position does not exceed the aggregate 
current index value of the offsetting options position.
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    \21\``Contemporaneous with the short sale'' includes 
transactions occurring simultaneously as well as transactions 
occurring within the same brief period of time. Thus, the short sale 
can precede, as well as follow, the option transaction.
    \22\The rule defines a ``qualified stock index'' as a stock 
index that includes one or more Nasdaq National Market securities, 
provided that more than 10% of the weight of the index is accounted 
for by Nasdaq National Market securities. The rule further provides 
that a qualified stock index shall be reviewed by the NASD as of the 
end of each calendar quarter, and the index shall cease to qualify 
if the value of the index represented by one or more Nasdaq National 
Market securities is less than 8% at the end of any subsequent 
calendar quarter.
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    To be designated a qualified options market maker, the market maker 
must have received an appointment as such pursuant to the rules of a 
``qualified options exchange.'' \23\ In addition, when establishing the 
short position, the options market maker must receive, or be eligible 
to receive, good-faith margin pursuant to Section 220.12 of Regulation 
T under the Act.
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    \23\A ``qualified options exchange'' is a national securities 
exchange with Commission approved rules and procedures governing: 
(1) The designation of options market makers as qualified options 
market makers; (2) the surveillance of its market makers' 
utilization of the exemption; and (3) authorization of the NASD to 
limit the designation of a qualified options market maker where the 
options exchange finds substantial, willful, or continuing 
violations of the rule. See e.g., File Nos. SR-CBOE-94-10, SR-Phlx-
94-9, SR-Amex-94-21 and SR-PSE-94-16 filed with the Commission on 
March 31, 1994, June 1, 1994, June 13, 1994 and June 16, 1994, 
respectively. The NYSE has informed the Commission that it sent its 
filing on June 27, 1994 under the file number SR-NYSE-94-22.
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    As discussed more fully below, options market maker short sale 
transactions unrelated to normal options market making activity (e.g., 
index arbitrage and risk arbitrage) are not exempt. Nonetheless, the 
rule provides that a member would not violate the short sale rule if it 
executed an order for the account of an options market maker with the 
good-faith belief that the order was in full compliance with the rule, 
even though a subsequent determination was made that the order was 
either not entitled to the exemption or was incorrectly marked 
``long.''
3. The Warrant Market Maker Exemption
    The rule also extends an exemption to registered warrant market 
makers, with restrictions similar to those imposed on qualified options 
market makers. To be eligible for this exemption, the warrant market 
maker must be registered as a market maker in the warrant and the short 
sale must be an ``exempt hedge transaction'' that results in a fully 
hedged position. The rule defines the term ``exempt hedge transaction'' 
as a short sale to hedge an existing offsetting warrant position or an 
offsetting warrant position that was created contemporaneous with the 
short sale.\24\
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    \24\The phrase contained in the proposed rule ``contemporaneous 
with the short sale'' is meant to include transactions occurring 
simultaneously as well as transactions occurring within the same 
brief period of time.
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    Short sales unrelated to normal warrant market making activity 
(e.g., index arbitrage and risk arbitrage) would not be exempt. As with 
short sales executed on behalf of options market makers, a member who 
executes a short sale on behalf of a warrant market maker will not be 
deemed to violate the short sale rule if it executed the order with the 
good-faith belief that the order was in full compliance with the rule, 
even though a subsequent determination was made that the order was 
either not entitled to the exemption or was incorrectly marked 
``long.''
4. The Exemptions Mirroring Rule       10a-1
    The rule also incorporates the exemptions in the Commission's short 
sale rule that are relevant to trading in Nasdaq.\25\ In addition, the 
Commission recently proposed an amendment to Rule 10a-1 to codify an 
interpretation with respect to liquidating index arbitrage 
positions.\26\ The NASD has requested that if approved by the 
Commission, it intends to conform its rule to the Commission's rule and 
will file the proposed rule change with the Commission.\27\
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    \25\Specifically, the rule exempts: (1) A broker-dealer from a 
sale that is for an account in which it has no interest and that is 
marked long; (2) Any sale by a market maker to offset odd-lot orders 
of customers; (3) Any sale by a market maker to liquidate a long 
position, which is less than a round lot, provided the sale does not 
change the dealer's position by more than one unit of trading (100 
shares); (4) Certain short same arbitrage transactions, in special 
arbitrage accounts, by a person who owns another security or 
presently will be entitled to acquire an equivalent number of 
securities of the sale class as the securities sold (provided the 
sale, or purchase which the sale offsets, is made for the bona fide 
purpose of profiting from a current price difference between the 
security sold and the security owned) and that the right of 
acquisition was originally attached to the security or was issued to 
all holders of any class of securities of the issuer; (5) 
Transactions made as part of an international arbitrage opportunity, 
whereby the seller must have a bona fide purpose to profit from the 
price difference between a security on an international market 
outside the jurisdiction of the U.S. and a security listed as a 
Nasdaq National Market security (for the purposes of this section, a 
depository receipt (e.g., ADR) for a security shall be deemed the 
same as the security represented by the receipt); (6) Short sales by 
an underwriter or any member of the distribution syndicate in 
connection with the over-allotment of securities, or any lay-off 
sale by a person with a distribution of securities pursuant to a 
rights offering (17 CFR 240.10b-8) or a standby underwriting 
commitment; and (7) Liquidations of blocks acquired by a market 
maker acting in the capacity of a block positioner even if the block 
positioner does not have a net long position in the security if and 
to the extent that its net short position in such security is the 
subject of one or more offsetting positions created in the course of 
bona fide arbitrage, risk arbitrage, or bona fide hedge activities.
    \26\Securities Exchange Act Release No. 30772 (June 3, 1992), 57 
FR 26891 (June 16, 1992).
    \27\Securities Exchange Act Release No. 31003 (Aug. 6, 1992), 57 
FR 36421 (Aug. 13, 1992) (publication of the Commission's original 
notice of SR-NASD-92-12).
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III. Comments

    As indicated above, the Commission received a total of 397 comment 
letters on the NASD's proposed short sale bid-test, with 275 opposing 
approval of the rule change and 122 supporting approval.\28\ In 
addition to amending the proposal several times, the NASD responded to 
issues raised by the commenters in a letter dated June 24, 1993.\29\
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    \28\A list of comment letters received in connection with the 
publication of the rule change is available for inspection in the 
Commission's Public Reference Room.
    \29\Letter from Richard Ketchum, Executive Vice President and 
Chief Operating Officer, NASD, to Jonathan G. Katz, Secretary, SEC 
(June 24, 1993).
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    Commenters in support of the proposed short sale bid-test are 
mostly issuers whose securities trade on Nasdaq.\30\ Many of these 
issuers report that they have experienced short selling ``abuse'' and 
several commenters provide what they believe are specific examples of 
``piling-on'' and manipulation. These commenters make four principal 
arguments in favor of the proposal: (1) The short sale rule is 
necessary to reduce intra-day volatility on Nasdaq; (2) the proposal 
will reduce market manipulation that threatens the integrity of the 
Nasdaq market; (3) short selling abuse undervalues stock prices; and 
(4) the proposed rule will provide more equal regulation of short 
selling between the exchange and Nasdaq markets.
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    \30\The Commission received approximately 120 letters from 
issuers and issuer trade groups.
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    Commenters opposing the rule change make three principal arguments 
that remain relevant after consideration of the NASD's amendments: (1) 
The NASD has failed to provide sufficient evidence of the need for a 
short sale rule or demonstrate the appropriateness of a bid-test; (2) 
the ``primary'' market maker qualification standards will have negative 
effects on both market makers and the Nasdaq market; and (3) the 
proposed rule is inconsistent with the requirements of the Act.

A. The Need for a Short Sale Bid-Test

    Commenters argue that the NASD has failed to provide sufficient 
evidence demonstrating the need for short sale regulation in the form 
of a bid-test. Indeed, many argue that there is no need for additional 
short sale restrictions. They argue that instead of adding another 
layer of regulation to the OTC market, the NASD should enforce existing 
anti-fraud rules more stringently and increase surveillance over market 
participants. Commenters further believe that the NASD proposed the 
rule with the primary purpose of eliminating a competitive disadvantage 
vis-a-vis the exchanges. They argue that the NASD is simply responding 
to issuer misconception of the effect of the Commission's short sale 
rule, which applies only to exchange-listed securities. They believe 
that issuers incorrectly conclude that manipulative short selling is 
substantially diminished because of the restrictions on short selling 
on exchanges. Finally, these commenters believe the NASD has not 
adequately balanced the benefits of short selling, such as increased 
liquidity and more accurate pricing of securities, against the costs 
that its rule will impose.
    Commenters also argued against the NASD's proposal on the basis 
that there are less restrictive alternatives. For example, the NASD 
could limit short selling in a given security only when the security 
has experienced a certain percentage decrease during the trading day. 
Many of these commenters further argued that the NASD's proposal would 
create long periods of short sale prohibition in some of the less 
liquid Nasdaq National Market securities. Commenters also opposed the 
rule due to concerns that it could encourage Market makers to 
manipulate bids to guard against short selling. Finally, several 
commenters cited economic studies such as that of Irving M. Pollack to 
support their arguments that short selling restrictions in the form of 
a bid-test are unnecessary.\31\
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    \31\In 1986, the NASD retained former Commissioner Irving M. 
Pollack to conduct a study of short selling in the OTC market. 
Irving M. Pollack, Short-Sale Regulation of Nasdaq Securities (July 
1986) (``Pollack Report'').
    In general, the Pollack Report recommended against a formal 
short sale rule for Nasdaq and found that the preponderance of short 
selling is done for legitimate purposes by market professionals. The 
report also found that short positions in Nasdaq stocks generally 
are smaller overall in relation to average daily volume and share 
outstanding than is true of exchange-listed securities, and that 
Nasdaq stocks have lower average short-interest percentages. Pollack 
Report at 65. The same finding was made by the NASD based on later 
data. NASD, Reports of the special Committee of the Regulatory 
Review Task Force on the Quality of Markets 32 (1988). See also J. 
Randall Woolridge and Amy Dickinson, Short Selling and Common Stock 
Prices, Fin. Analysts J. 20 (Jan.-Feb. 1994) (analysis of overall 
market data and selected individual securities traded on exchanges 
and in the OTC market indicating that there is an insignificant 
relationship between changes in short positions and stock prices).
    The Pollack Report also concluded that, unless accompanied by a 
violation of delivery and settlement requirements or by fraudulent 
or manipulative conduct, short selling is not improper or abusive. 
Since the study found that there was no current evidence of problems 
that would support consideration of tick-test type restrictions, the 
study did not explore the varieties of tick-tests and their 
feasibility for the market. The study identified, however, the 
build-up of short to clearing (i.e., naked short) positions as 
having the potential to create serious problems in a lengthy bear 
market or in times of market stress. Pollack Report at 63-64.
---------------------------------------------------------------------------

    In response to the commenters' belief that a short sale rule for 
the Nasdaq market is unnecessary, the NASD stated that notwithstanding 
the implementation of the Pollack Report recommendations, it remains 
concerned about short-term volatility and inaccurate pricing of Nasdaq 
securities often associated with short selling. In addition, the NASD 
cited to over one hundred comment letters submitted by issuers claiming 
that they have experienced short selling problems, some recounting 
specific instances alleging that participants sold short on the basis 
of rumors or inaccurate reports. The NASD, therefore, indicated its 
belief that its proposal is a reasonable approach to solving these 
problems and is consistent with the Act.

B. Effect of Primary Market Maker Qualification Standards on Nasdaq 
Market Makers and the Market

    Many commenters indicated their believe that most short selling is 
done by market makers and, therefore, if the NASD does impose a bid-
test restriction on short selling, there should be no exemptions. Many 
market making firms and others criticized the NASD's primary market 
maker qualification standards, which goes into effect one year after 
the effective date of the rule. They argued that the criteria will 
unfairly discriminate among market makers and create two tiers of 
market makes and, thus, will fragment the market making community and 
restrict the ability of non-primary market makers to use short sales as 
a risk management technique.
    Some commenters also believe that requiring market makers to 
maintain the inside bid or offer will result in dealers following the 
lead of other dealers in the issue, thus creating additional 
volatility. Additionally, commenters stated that the requirements that 
no more than 50% of a market maker's quotation updates occur without 
being accompanied by an execution appears to be in direct conflict with 
a market maker reflecting a customer's order in its quote. In addition, 
some commenters believed that this requirement would prevent market 
makers from updating quotes in response to significant external events 
and amounts to a penalty on efficient pricing policies.
    Some commenters also strongly opposed the interim, first year 20-
day qualification criteria, stating that it is overly restrictive and 
disadvantageous to market makers that want to add new stocks. They 
believed that the inability to short a stock at the bid price will 
seriously impede market makers' capital commitment to these issues and 
recommended that the 20-day test be a stand-by provision, to be 
implemented only when abuses of the market maker exemption have been 
uncovered. On the other hand, at least one commenter believed that 
immediate implementation of the permanent qualification standards may 
have the effect of improving the quality of the market and, thus, is 
preferable to the 20-day registration standard.
    In response to these comments, the NASD stated that the 
qualification standards are designed to limit the exemption to those 
market participants that add depth and liquidity to the market. This 
approach, according to the NASD, will ensure that the exemption is 
available only to those market makers that consistently add value to 
the market.
    Responding to the concern that the primary market maker criteria 
may have negative effects on market makers and the Nasdaq market, the 
NASD indicated that it believes that the specific qualification 
criteria can be met successfully by both small and large market makers. 
The NASD further noted that market making firms have direct control 
over whether they meet the primary market maker qualification 
standards. In particular, they have control over the amount of time at 
which they are at the inside bid or offer, their spread in comparison 
to the average spread, quotation updates accompanied by reported 
transactions and accounting for 1\1/2\ times of proportionate share of 
overall volume.

C. Consistency With the Requirements of the Act

    Many commenters on the proposed rule change believed that it is 
inconsistent with the requirements of the Act. In particular, 
commenters believed that the rule proposal is at odds with the Act's 
requirements that the NASD's rules: (a) Promote just and equitable 
principles of trade, remove impediments to and perfect the mechanism of 
a free and open market, and protect investors and the public 
interest;\32\ and (b) not impose a burden on competition not necessary 
or appropriate in furtherance of the purposes of the Act.\33\
---------------------------------------------------------------------------

    \32\15 U.S.C. Sec. 78o-3(b)(6).
    \33\15 U.S.C. Sec. 78o-(b)(9).
---------------------------------------------------------------------------

    Beyond the commenters' concern that the rule will unfairly 
discriminate among market makers (discussed in the previous section), 
commenters argued that the bid-test will create inequitable principles 
of trade by disadvantaging non-exempt market participants. Further, 
they believed that the bid-test adds an unnecessary and poorly designed 
impediment to an otherwise free and open market by restricting the 
ability of participants to determine the natural market price of 
securities. Finally, commenters asserted that the proposal will not 
protect investors or the public interest because, as drafted, the rule 
fails to restrict manipulative short selling, while at the same time it 
exempts market makers which are the most active class of short sellers.
    Notwithstanding the NASD's assertion that the proposal furthers 
Congress' goal of fair competition among brokers and dealers and among 
markets, commenters argued that the proposal is inconsistent with 
Section 11A(a)(1)(C).\34\ These commenters asserted that the bid-test 
is anti-competitive in that it creates unfair advantages for certain 
market participants at the expense of other market participants. 
Specifically, they argued that the rule provides unfair advantages to 
qualified market makers at the expense of non-exempt market 
participants. Further, commenters stated that the purpose of the rule 
is to enhance the NASD's competitive status at the expense of other 
markets and that this goal is directly at odds with the requirements of 
the Act.
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    \34\  Section 11A(a)(1)(C) sets forth, among other things, 
Congress' finding that it is in the public interest to assure fair 
competition among brokers and dealers, among exchange markets, and 
between exchange markets and markets other than exchange markets. 15 
U.S.C. 78k(a)(1)(C).
---------------------------------------------------------------------------

    The NASD argued that its proposal complies with Section 15A(b)(6) 
because, similar to Rule 10a-1, it is designed to prevent fraudulent 
and manipulative acts. In addition, the NASD argued, because the 
immediate beneficiaries of short sale regulation are the shareholders 
who own stock, the NASD believes the proposal ensures an environment 
designed to protect investors and the public interest. The NASD also 
asserted that the rule is consistent with Section 15A(b)(9) because, 
although the proposal does impose burdens on members and their 
customers, these burdens are appropriate for maintaining the integrity 
of the market for shareholders.
    The NASD responded to the commenters' unequal regulation argument 
by asserting that, for the purposes of Section 3(a)(36) of the Act, 
NASD members and non-members are not within the same ``class.'' Thus, 
granting members of the NASD an exemption to the rule while not 
granting investors or non-members an equivalent exemption cannot be 
deemed unequal regulation. The NASD further pointed out that Congress 
did not ban all forms of discrimination between members of the same 
class. The Act only bans unfair discrimination and the NASD asserts 
that to grant an exemption to those member firms that add liquidity and 
otherwise improve the market is not unfair.
    The NASD also addressed the unequal regulation argument by 
asserting that the exemption for certain Nasdaq market makers is 
appropriate even though exchange specialists do not have a similar 
exemption under Rule 10a-1 because of the inherent differences between 
the competitive dealer market and the auction markets. In particular, 
the NASD pointed out that: (a) Exchange specialists have a monopoly 
over the securities in which they trade; (b) dealers generally do not 
have an informational advantage over other dealers; and (c) dealers do 
not have the ability to close their markets because of sudden 
volatility or an order imbalance.

IV. Discussion

    Under Section 19(b) of the Act, the Commission must approve a 
proposed NASD rule change if it finds that the proposal is consistent 
with the requirements of the Act and the rules and regulations 
thereunder that govern the NASD.\35\ In evaluating a given proposal, 
the Commission must examine the record before it and all relevant 
factors and necessary information.\36\ Section 15A of the Act addresses 
with some specificity requirements applicable to NASD rules, and those 
standards are particularly significant in the Commission's 
determination of whether the NASD's proposal is consistent with the 
Act.\37\
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    \35\15 U.S.C. 78s(b).
    \36\In the Securities Acts Amendments of 1975, Congress directed 
the Commission to use its authority under the Act, including its 
authority to approve SRO rule changes, to foster the establishment 
of a national market system and promote the goals of economically 
efficient securities transactions, fair competition, and best 
execution. Congress granted the Commission ``broad, discretionary 
powers'' and ``maximum flexibility'' to develop a national market 
system and to carry out these objectives. Furthermore, Congress gave 
the Commission ``the power to classify markets, firms, and 
securities in any manner it deems necessary or appropriate in the 
public interest or for the protection of investors and to facilitate 
the development of subsystems within the national market system.'' 
S. Rep. No. 75, 94th Cong., 1st. Sess., at 7 (1975).
    \37\See 15 U.S.C. Sec. 78o-3.
---------------------------------------------------------------------------

    The Commission has determined to approve the NASD's proposal. The 
Commission believes that the rule change is consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to the NASD, including the requirements of Sections 
15A(b)(6), 15A(b)(9) and 15A(b)(11) of the Act.\38\ Section 15A(b)(6) 
requires, among other things, that the NASD's rules be designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, and to protect investors and the 
public interest.\39\ Sections 15A(b)(9) and (11) require that the 
NASD's rule be designed not to impose any burden on competition not 
necessary or appropriate in furtherance of the Act\40\ and to produce 
fair and informative quotations, to prevent fictitious or misleading 
quotations, and to promote orderly procedures for collecting, 
distributing and publishing quotations.\41\ In addition, the Commission 
believes that the rule change will further the goals of Section 11A in 
that it will promote efficient and effective market operations and 
economically efficient execution of investor orders in the best market 
and assure fair competition between the exchange markets and the OTC 
market and among brokers and dealers.\42\
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    \38\Id 78o-3(b)(6), (9) and (11).
    \39\Id 78o-3(b)(6).
    \40\Id 78o-3(b)(9).
    \41\Id 78o-3(b)(11).
    \42\Id 78k-1(a)(1)(C).
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A. Background of Short Sale Regulation

    The Commission believes that the disparate regulation of short 
selling in Nasdaq and exchange markets may no longer be warranted or 
justified by valid regulatory purposes. Short selling of exchange-
listed securities has been the subject of Commission regulation since 
1938.\43\ On a number of occasions, the Commission has sought comment 
on and considered whether to extend short sale regulation similar to 
Rule 10a-1 to securities traded solely in the OTC market. In the 
process of designating certain OTC securities as National Market 
securities, the Commission discussed issues related to the eventual 
inclusion of qualified OTC securities in additional national market 
system facilities.\44\ In response, the NASD stated that ``short 
selling regulations prior to and during a distribution of [National 
Market] Securities would be appropriate but that it is not necessary, 
at this time, to impose across-the-board short sales regulations on 
transactions in [National Market] Securities.''\45\ In 1985, the 
Commission again sought comment on whether short sales in Nasdaq 
National Market securities should be regulated, and if so, how such 
regulation should occur.\46\ Commenters generally opposed the adoption 
of a tick-test for Nasdaq National Market securities. The Commission 
did not act on these requests for comments.\47\
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    \43\17 CFR 240.10a-1. Congress granted the Commission plenary 
power to regulate short sales in listed securities to ``purge the 
markets of the abuses connected with these practices.'' See Stock 
Exchange Practices, Report of the Senate Comm. on Banking and 
Currency, S. Rep. No. 1455, 73d Cong., 2d Sess. 55 (1934). See also 
H.R. Rep. No. 1383, 73d Cong., 2d Sess. 11 (1934). Following a 
Commission inquiry into the effects of concentrated short selling in 
the 1937 market break, the Commission in 1938 adopted Rule 10a-1. 
This rule prohibited all short sales in securities listed on a 
national securities exchange below the last sale price, or at the 
last sale price if the last preceding trade at a different price was 
at a higher price, subject to certain exceptions. See Securities 
Exchange Act Release No. 1548 (Jan. 24, 1938), 3 FR 213. In that 
release, the Commission also adopted Rule 3b-3. For a detailed 
discussion of the development of Rule 10a-1, see 7 Louis Loss & Joel 
Seligman, Securities Regulation 3198-3221 (1991).
    \44\Securities Exchange Act Release No. 18590 (Mar. 24, 1982), 
47 FR 13617 (Mar. 31, 1982). The primary effect of designating OTC 
securities as National Market securities is that transactions in 
these securities must be reported in a real-time system in 
accordance with the Commission's last sale reporting rule, and 
quotations for these securities must be firm as to the quoted price 
and size. 17 CFR 240.11Aa3-1 and 17 CFR 240.11Ac1-1.
    \45\Letter from William Broka, Secretary, NASD, to George A. 
Fitzsimmons, Secretary, SEC (July 31, 1981).
    \46\Securities Exchange Act Release No. 22127 (June 21, 1985), 
50 FR 26584 (June 27, 1985).
    \47\The Commission did, however, adopt Rule 10b-21 to address 
the concern expressed by the NASD and other commenters about the 
practice of short selling immediately prior to a public offering of 
securities with the covering purchases being made from the 
securities in the offering. 17 CFR 240.10b-21. In particular, Rule 
10b-21 prohibits a person who effects short sales of an equity 
security between the filing of a registration statement and the time 
at which sales of such equity security may be commenced, from 
covering those short sales with offered securities purchased from an 
underwriter or other broker or dealer participating in the offering. 
The Commission originally adopted Rule 10b-21 on a temporary basis 
(Rule 10b-21(T)). Securities Exchange Act Release No. 26028 (Aug. 
25, 1988), 53 FR 33455 (Aug. 31, 1988). The Commission subsequently 
adopted the rule on a permanent basis. Securities Exchange Act 
Release No. 33702 (Mar. 2, 1994) 59 FR 10984 (Mar. 9, 1994).
---------------------------------------------------------------------------

    In 1986, the Pollack Report made a number of recommendations 
regarding short selling in Nasdaq stocks, but recommended against a 
formal short selling rule for Nasdaq.\48\ Since 1986 the NASD has 
adopted a number of the recommendations for short sale regulation 
contained in the Pollack Report. The NASD now requires each member to 
mark all sale transactions either ``long'' or ``short;''\49\ requires 
each member, prior to accepting a short sale from a customer, to make 
an affirmative determination that it will receive delivery of the 
security from the customer or that it can borrow the security on the 
customer's behalf;\50\ requires each member, with certain exceptions, 
to make an affirmative determination that it can borrow the security 
before effecting a short sale for its own account;\51\ imposes 
mandatory buy-in requirements for cash or guaranteed delivery for 
Nasdaq securities where the buyer is a customer other than another NASD 
member, upon failure of a clearing corporation to effect delivery 
pursuant to a buy-in notice;\52\ requires each member to report to the 
NASD, as of the 15th of each month, aggregate short positions in all 
customer and proprietary accounts in Nasdaq securities;\53\ and 
requires a short seller's broker to close-out securities for cash or 
guaranteed delivery when delivery has not occurred within 10 business 
days after normal settlement date.\54\
---------------------------------------------------------------------------

    \48\See supra note 31 and accompanying text.
    \49\NASD Manual, Rules of Fair Practice, Art. 3, Sec. 21(b)(i), 
(CCH)  2171. Securities Exchange Act Release No. 23572 (Aug. 28, 
1986), 51 FR 31865 (Sept. 5, 1986) (approval of File No. SR-NASD-86-
17).
    \50\NASD Manual, Rules of Fair Practice, Art. 3, Sec. 1, Prompt 
Receipt and Delivery Interpretation (b)(2)(A), (CCH)  2151.04. 
Securities Exchange Act Release No. 23572 (Aug. 28, 1986), 51 FR 
31865 (Sept. 5, 1986) (approval of File No. SR-NASD-88-17). On May 
26, 1994, the NASD filed a proposed rule change to amend the 
definition of ``affirmative determination'' to require a member to 
maintain a written record identifying, among other things, the 
location and deliverability of the securities or the identity of the 
individual and firm who offered assurance that the securities will 
be delivered or available for borrowing by the settlement date. See 
File No. SR-NASD-94-31.
    \51\NASD Manual, Rules of Fair Practice, Art. 3, Sec. 1, Prompt 
Receipt and Delivery Interpretation (b)(2)(B), (CCH)  2151.04. 
Securities Exchange Act Release No. 28186 (July 5, 1990), 55 FR 
28703 (July 12, 1990) (approval of File No. SR-NASD-89-5). See also 
supra note 50 concerning NASD proposal to amend the definition of 
``affirmative determination.''
    \52\NASD Manual, Uniform Practice Code, Sec. 59(j), (CCH)  
3559. Securities Exchange Act Release No. 26694 (Apr. 4, 1989) 54 FR 
14404 (Apr. 11, 1989) (approval of File No. SR-NASD-87-10).
    \53\NASD Manual, Rules of Fair Practice, Art. III, Sec. 41 (CCH) 
 2200A. Securities Exchange Act Release No. 23855 (Dec. 1, 1986), 
51 FR 44170 (Dec. 8, 1986) (approval of File No. SR-NASD-86-30).
    \54\NASD Manual, Uniform Practice Code, Sec. 71, (CCH)  3571. 
Securities Exchange Act Release No. 32632 (July 14, 1993), 58 FR 
39072 (July 21, 1993) (File No. SR-NASD-90-30).
---------------------------------------------------------------------------

    The NASD also encouraged adoption of Rule 10b-21,\55\ which 
prohibits a person who effects a short sale of an equity security 
between the filing of a registration statement and the time at which 
sales of such equity security may be commenced from covering the short 
sale with offered securities purchased from an underwriter or other 
broker or dealer participating in the offering.\56\
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    \55\See supra note 47.
    \56\17 CFR 240.10b-21.
---------------------------------------------------------------------------

B. The NASD's Initiative

1. The Need for a Short Sale Rule for the OTC Market
    The Commission is reluctant to approve regulations that are likely 
to hinder efficient price discovery. The Commission's experience with 
Rule 10a-1 demonstrates that limited short sale rule restrictions have 
not interfered with the efficient operation of the exchange markets, 
while reducing the potential for abusive short selling practices. In 
addition, investors derive a certain measure of confidence from short 
selling limitations.
    Over the past twenty years, the enhancements to, and growth of, the 
OTC market have led to increased expectations by investors, issuers and 
broker-dealers of Nasdaq securities generally, and Nasdaq National 
Market securities, in particular. Today, these participants expect 
safeguards in Nasdaq comparable to the exchange markets. The NASD 
believes that implementation of the principal Pollack Report 
recommendations have not adequately provided these safeguards.
    The NASD and commenters have presented evidence, albeit anecdotal, 
of continuing problems of short selling in the OTC market. In addition, 
the Commission recognizes that without a short sale rule for Nasdaq, 
the NASD is competitively disadvantaged. The exchange markets can and 
do attract issuers and investors with claims that their markets protect 
against potential short selling abuse. In 1975, Congress specifically 
found that the interests of the public, the protection of investors and 
the maintenance of fair and orderly markets are furthered by fair 
competition between the exchange markets and the OTC market.\57\ Thus, 
recognizing the potential for problems associated with short selling, 
the changing expectations of Nasdaq market participants and the 
competitive disparity between the exchange markets and the OTC market, 
the Commission believes that regulation of short selling of Nasdaq 
National Market securities is consistent with the Act.
---------------------------------------------------------------------------

    \57\15 U.S.C. 78k-1(a)(1)(C)(ii).
---------------------------------------------------------------------------

2. The Design of the Proposed Restrictions
    Having determined that some regulation of short selling of Nasdaq 
National Market securities is consistent with the Act, the Commission 
must determine whether the proposed design of that regulation is 
consistent with the Act. The Commission's tick-test restricts short 
selling based on the most recent sale price in the particular security. 
This is a logical approach in the auction market environment where, 
generally, transactions in a given security are executed at one 
location and, consequently, are typically reported sequentially.
    Notwithstanding the advances over the past fifteen years in trade 
reporting of Nasdaq securities, the NASD is not convinced that a tick-
test would be appropriate for Nasdaq short sale regulation. In Nasdaq, 
the average security has more than ten market makers. With many trades 
occurring over the telephone and transaction reporting occurring up to 
ninety seconds after execution, the sequence in which trades are 
reported may not always reflect the sequence in which the trades 
occurred. Thus, the NASD believes that differences between trade 
reporting in the auction markets and the competing dealer market 
warrant consideration of a different, although analogous, approach to 
short sale regulation.
    The NASD's rule also differs from the Commission's short sale rule 
by providing, under certain circumstances, a market maker exemption; 
under the Commission's rule, which generally applies only to the 
auction markets, specialists do not enjoy an exemption. The NASD 
believes that a market maker exemption is justified, considering the 
inherent differences between its competing dealer market and the 
auction markets. In particular, unlike competing market makers, 
specialists have a monopoly over the securities in which they trade and 
are able to call trading halts in response to excessive volatility or 
order imbalances.
    The Commission believes that the NASD's short sale bid-test, 
including the market maker exemptions, is a reasonable approach to 
short sale regulation of Nasdaq National Market securities and reflects 
the realities of its market structure. The Commission believes, 
however, that experience with the NASD's bid-test may raise issues that 
require reconsideration of some or all elements of the proposal. The 
Commission is sensitive to commenters' concerns about efficiency and 
liquidity in the market. The Commission acknowledges, based in large 
part on the arguments raised by commenters, that there will be 
opportunities for market makers to control short selling by moving 
their bids.\58\ The Commission is also concerned that the bid-test may 
restrict non-abusive short-selling for lengthy periods of time when the 
bid is stable after a down-bid.\59\
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    \58\We note, however, that the rule includes a provision 
(conditioning market maker exemption on at least 50% of quote 
updates being accompanied by executions) that could discourage 
market makers from lowering their bids to limit short selling.
    \59\The Commission notes that facilities for exposure of 
customer limit orders in Nasdaq would alleviate the restrictiveness 
of the rule by increasing opportunities for customers to trade 
between the quotes. Increased transparency would also limit the 
ability of market makers to restrict short selling by lowering their 
bids. In this regard, the Commission's Division of Market Regulation 
recently recommended that the NASD encourage the display of limit 
orders in Nasdaq stocks that are better than the best Nasdaq quote. 
See Division of Market Regulation, Market 2000: An Examination of 
Current Equity Market Developments at IV-6 (January 1994) (``Market 
2000 Report'').
---------------------------------------------------------------------------

    In addition, questions remain about whether market maker exemptions 
from these restrictions are necessary on an ongoing basis. It is worth 
noting that specialists and other market makers do not enjoy similar 
exemptions from the Commission's short sale rule for listed securities 
under Rule 10a-1. With respect to the market maker exemption, 
commenters have raised concerns about one of the conditions of the 
proposed exemption, which requires that at least 50% of a market 
maker's quote updates be accompanied by an execution. The Commission 
acknowledges that this requirement may decrease pricing efficiency by 
discouraging market makers from updating their quotes in response to 
external events. Moreover, the Commission is concerned that this 
requirement could discourage market makers from exposing customer 
orders in their quotes. The Commission has long encouraged the display 
of customer orders with prices better than the interdealer quotes,\60\ 
and will scrutinize the effects of this requirement on transparency for 
customer orders.
---------------------------------------------------------------------------

    \60\See e.g., Market 2000 Report, at IV-6 (the NASD should 
``consider encouraging the display of limit orders in Nasdaq stocks 
that are better than the best Nasdaq quote * * *'').
---------------------------------------------------------------------------

    During the eighteen-month temporary approval period for the 
proposal, the Commission and the NASD will have an opportunity to study 
the effects of the bid-test and market marker exemptions, and to 
determine whether the bid-test and exemptions are practicable and 
necessary on an ongoing basis.\61\ The Commission expects the NASD to 
monitor the effects of its short sale rule on a continuing basis during 
the first 12 months of effectiveness, and expects a full report as soon 
as practicable thereafter. In particular, the NASD's study should 
address the following issues:
---------------------------------------------------------------------------

    \61\This 18-month pilot period also enables the Commission and 
the NASD to consider other alternatives to the rule. See e.g. supra 
Comment section of this order.
---------------------------------------------------------------------------

     Effectis on Amount of Short-Selling: As noted, the bid-
test will lead to prohibitions of short selling for longer time 
intervals than would a transaction price tick-test. The study should 
provide data on the length of these intervals. In addition, the study 
should evaluate the amount of non-market maker short selling permitted 
under the rule, the extent of short selling by market makers exempt 
from the rule, and any incidents of perceived ``abusive short 
selling.''
     Spreads and Volatility: The NASD has asserted that 
``abusive short selling'' has increased volatility and spreads in 
Nasdaq stocks. The study should evaluate the effects of the rule on 
spreads and volatility.
     Potential Bid Manipulation: As noted, the rule provides 
market makers with the opportunity to control short selling by moving 
their bids. The study should evaluate whether the behavior of bid 
prices has been significantly altered by the rule. Specifically, the 
study should compare the average time that short sales are prohibited 
after the rule is in place relative to the average time short sales 
would have been prohibited in the period prior to effectiveness, had 
the rule been in place.
     Minimum Increment for Allowable Sales Above the Bid: The 
study should review the effects of permitting short selling based on a 
minimum bid increment of 1/16.\62\
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    \62\In this regard, the Commission notes that various 
proprietary trading systems may allow for finer pricing intervals.
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V. Conclusion

    For the reasons discussed above, the Commission has determined that 
the NASD's proposed short sale rule is designed to prevent manipulative 
acts and practices and protect investors and the public interest, and 
that these goals, on balance, outweigh any negative effects the rule 
may have on the market for Nasdaq National Market securities.
    Accordingly, the Commission finds that the rule change is 
consistent with the Act and the rules and regulations thereunder 
applicable to the NASD and, in particular, Sections 15A(b)(6), 
15A(b)(9), and 15A(b)(11). In addition, the Commission finds that the 
rule change is consistent with the Congressional objectives for the 
equity markets, set out in Section 11A, of achieving more efficient and 
effective market operations, fair competition among brokers and 
dealers, and the economically efficient execution of investor orders in 
the best market.
    It Is Therefore Ordered, pursuant to Section 19(b)(2) of the Act, 
that the instant rule change SR-NASD-92-12 be, and hereby is, approved, 
effective September 6, 1994, on a temporary eighteen-month basis 
through March 5, 1996.

    By the Commission.
Jonathan G. Katz,
Secretary.
[FR Doc. 94-16372 Filed 7-6-94; 8:45 am]
BILLING CODE 8010-01-M