[Federal Register Volume 61, Number 25 (Tuesday, February 6, 1996)]
[Notices]
[Pages 4504-4506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2464]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36795; File No. SR-NASD-95-60]


Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc.; Order Granting Accelerated Temporary Approval of 
Proposed Rule Change To Extend Certain SOES Rules Through July 31, 1996

January 31, 1996.

I. Introduction

    On December 19, 1995, 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 NASD proposes to 
extend through July 31, 1996 certain changes to its Small Order 
Execution System (``SOES'') that were originally implemented in January 
1994 for a one-year pilot period (``January 1994 Amended SOES 
Rules'').\3\ These rules 

[[Page 4505]]
subsequently were modified in January 1995 (``January 1995 Amended SOES 
Rules''),\4\ further modified in March 1995 (``March 1995 Amended SOES 
Rules''),\5\ and most recently extended in September 1995 (``September 
1995 Amended SOES Rules'').\6\ The September 1995 Amended SOES Rules 
are scheduled to expire on January 31, 1996, and the NASD seeks to 
extend these rules until July 31, 1996. Without further Commission 
action, the SOES rules and would revert to those in effect prior to 
January 1994.

    \1\ 15 U.S.C. Sec. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 33377 (Dec. 23, 1993), 
58 FR 69419 (Dec. 30, 1993) (approving the Interim SOES Rules on 
one-year pilot basis effective January 7, 1994). See also Securities 
Exchange Act Release No. 33424 (Jan. 5, 1994) (order denying stay 
and granting interim stay through January 25, 1994) and Securities 
Exchange Act Release No. 33635 (Feb. 17, 1994) (order denying 
renewed application for stay).
    The changes contained in the January 1994 Amended SOES Rules 
were as follows:
    (1) A reduction in the maximum size order eligible for SOES 
execution from 1,000 shares to 500 shares;
    (2) A reduction in the minimum exposure limit for 
``unpreferenced'' SOES orders for five times the maximum order size 
to two times the maximum order size, and the elimination of exposure 
limits for ``preferenced'' orders;
    (3) An automated function for updating market maker quotations 
when the market maker's exposure limit has been exhausted (marked 
makers using this update function may establish an exposure limit 
equal to the maximum order size for that security); and
    (4) The prohibition of short sale transactions through SOES.
    \4\ Securities Exchange Act Release No. 35275 (Jan. 25, 1995), 
60 FR 6327 (Feb. 1, 1995).
    The January 1995 Amended SOES Rules excluded the following 
feature of the January 1994 Amended SOES Rules:
    (1) The prohibition of short sale transactions through SOES.
    \5\ Securities Exchange Act Release No. 35535 (Mar. 27, 1995), 
60 FR 16690 (Mar. 31, 1995).
    The March 1995 Amended SOES Rules Excluded the following two 
features of the January 1994 Amended SOES Rules:
    (1) A reduction in the maximum size order eligible for SOES 
execution from 1,000 to 500 shares; and
    (2) The prohibition of short sale transactions through SOES. 
(This prohibition also was excluded from the January 1995 Amended 
SOES Rules.) See supra, note 4.
    \6\ Securities Exchange Act Release No. 36311 (September 29, 
1995), 60 FR 52438 (October 6, 1995). The September Amended SOES 
Rules were identical to the March 1995 Amended SOES Rules, and 
extended the effectiveness of such rules until January 31, 1996.
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    Notice of the proposed rule change appeared in the Federal Register 
on January 22, 1996.\7\ No comment were received in response to the 
Commission release. For the reasons discussed below, this order 
approves the proposed rule change until July 31, 1996.

    \7\ Securities Exchange Act Release No. 36719 (January 16, 
1996), 61 FR 1655 (January 22, 1996).
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II. Description of the Current and Prior Proposals

    The NASD proposes to extend until July 31, 1996 the September 1995 
Amended SOES Rules. Specifically, the NASD proposes to extend until 
July 31, 1996 changes that:
    (1) Reduce the minimum exposure limit for ``unpreferenced'' SOES 
orders from five times the maximum order size to two times the maximum 
order size, and eliminate the exposure limits for ``preferenced'' SOES 
orders; and
    (2) Maintain the availability of an automated function for updating 
market maker quotations when the market maker's exposure limit has been 
exhausted (market makers using this update function may establish an 
exposure limit equal to the maximum order size for that security).

III. Discussion

    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.\8\ In 
evaluating a given proposal, the Commission examines the record before 
it and relevant factors and information.\9\ The Commission believes 
that approval of the proposal through July 31, 1996 meets the above 
standards. Specifically, the Commission believes that the current 
minimum exposure limit and automated quotation update feature are 
appropriate while the Commission considers NAqcess, the NASD's latest 
proposal for handling small orders from retail customers.\10\

    \8\ 15 U.S.C. Sec. 78s(b). The Commission's statutory role is 
limited to evaluating the rules as proposed against the statutory 
standards. See S. Rep. No. 75, 94th Cong., 1st. Sess., at 13 (1975).
    \9\ 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).
    \10\ See Securities Exchange Act Release No. 36548 (December 1, 
1995), 60 FR 63092 (December 8, 1995). The comment period for the 
NAqcess proposal closed on January 26, 1996, and to date the 
Commission has received over 250 comments on the proposal. The 
Commission's evaluation of the NAqcess proposal may affect its 
evaluation of any future submissions relating to SOES.
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    The Commission believes that a sufficient basis exists for 
approving the NASD's proposal to continue the current operation of 
SOES. The system will continue to provide retail investors, through 
automation, an opportunity to obtain execution of orders in size up to 
1,000 shares, ensuring access to the Nasdaq market.
    In addition, as a result of the March 1995 Amended SOES Rules, the 
SOES minimum exposure limit was increased from 1,000 shares to 2,000 
shares. Moreover, the March 1995 Amended SOES Rules continues the 
methodology for calculating a market maker's outstanding exposure limit 
that excluded orders executed pursuant to a preferencing arrangement. 
Under the SOES Rules prior to the January 1994 Amended SOES Rules, both 
preferenced and unpreferenced orders were considered when calculating a 
market maker's remaining exposure limit. Thus, in relative terms, the 
2,000 share exposure limit potentially provides greater liquidity under 
certain conditions compared to the pre-January 1994 Amended SOES Rules' 
5,000 share minimum exposure limit.
    The Commission continues to believe that the current operation of 
SOES has eliminated economically significant restrictions imposed on 
order entry firms by the January 1994 Amended SOES Rules. The 
Commission believes that while the proposal does not restore the pre-
January 1994 Amended SOES Rules' minimum exposure limit, it provides 
customers fair access to the Nasdaq market and reasonable assurance of 
timely executions. In this regard, the maximum order size is consistent 
with the size requirement prescribed under the Firm Quote Rule \11\ and 
NASD rules governing the character of market maker quotations.\12\ 
Moreover, a market maker's minimum exposure limit for unpreferenced 
orders is double its minimum size requirement prescribed under these 
rules.

    \11\ 17 CFR 240.11Ac1-1(c).
    \12\ NASD Manual, Schedules to the By-Laws, Schedule D, Part V, 
Sec. 2(a), (CCH) para.1819.
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    The Commission also believes that extending the automated update 
function is consistent with the Act and, in particular, the Firm Quote 
Rule.\13\ The update function provides market makers the opportunity to 
update their quotations automatically after executions through SOES; 
under the Commission's Firm Quote Rule, market makers are entitled to 
update their quotations following an execution and prior to accepting a 
second order at their published quotes.\14\

    \13\ The SOES automated update function is also consistent with 
the NASD's autoquote policy which generally prohibits autoquote 
systems, but allows automatic updating of quotations ``when the 
update is in response to an execution in the security by that 
firm.'' NASD Manual, Schedules to the By-Laws, Schedule D, Part V, 
Sec. 2 (CCH) para.1819.
    \14\ The Firm Quote Rule requires market makers to execute 
orders at prices at least as favorable as their quoted prices. 17 
CFR 11Ac1-1(c)(2). The Rule also allows market makers a reasonable 
period of time to update their quotations following an execution; 
allows market makers to reject an order if they have communicated a 
quotation update to their exchange or association; and provides for 
a size limitation on liability at a given quote. 17 CFR 240.11Ac1-
1(c)(3)(ii). See also, Securities Exchange Act Release No. 14415 
(Jan. 26, 1978), 43 FR 4342 (Feb. 1, 1978).

[[Page 4506]]

    In its Order approving the September 1995 Amended SOES Rules, the 
Commission noted its concern about the potential for delayed and/or 
inferior executions. In that regard, the Commission stated that it 
expected the NASD to monitor the extent to which exposure limits are 
exhausted, the extent to which the automated quotation update feature 
is used, and the effects of these two aspects on liquidity. Moreover, 
the Commission stated that it expected the NASD to consider the 
possibility of enhancements to eliminate the potential for delayed and/
or inferior executions. The NASD, therefore, submitted a report in 
response to the Commission's requests.\15\

    \15\ Monitoring Report of Exhaustion of SOES Exposure Limits and 
the Usage of Nasdaq Automated Quotation Update Feature, NASD 
Economic Research Department, December 18, 1995 (``Monitoring 
Report'').
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    In the Monitoring Report, the NASD found that from October 2, 1995 
to November 22, 1995, the average daily number of occurrences of SOES 
exposure limits being exhausted was eighty-three.\16\ The NASD stated 
that relative to the average number of market making positions on the 
Nasdaq National Market, the average is equivalent to 0.0019 occurrences 
per market making position per day or 0.0211 occurrences per stock per 
day.\17\ The NASD concluded that, based on these numbers, the impact of 
exhaustions on liquidity if negligible.\18\

    \16\ The high was 119 occurrences on November 21, 1995, and the 
low was 47 occurrences on October 4, 1995.
    \17\ These averages were based on averages of 44,062 market 
maker positions and 3,932 securities per day.
    \18\ The NASD also noted that even when an exhaustion occurred, 
it is likely that other market makers were at the inside quote to 
provide liquidity to SOES orders.
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    The NASD also supplied data regarding the automated quotation 
update feature in the Monitoring Report. The NASD stated that the 
average daily number of updates using the Nasdaq automated quotation 
update feature over the period was 3,394.\19\ The NASD reported that as 
of November 21, 1995, the automated quotation update feature was used 
by 126 market makers for 10,644 market making positions, or 26 percent 
of all active market makers and 24 percent of all Nasdaq National 
Market market making positions.\20\

    \19\ The high was 5,376 on October 10,1995 and the low was 2,157 
on October 4, 1995.
    \20\ The NASD noted that these numbers do not take into account 
any internal automated quotation update systems that individual 
market making firms may employ and therefore, overall automated 
quotation update usage on Nasdaq is greater than the NASD's 
calculations demonstrate.
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    With regard to the Commission's request that the NASD consider the 
possibility of enhancements to SOES in order to eliminate the potential 
for delayed and/or inferior executions, the NASD, in its Monitoring 
Report, stated that the average delay between a SOES market order entry 
and order execution is 1.62 seconds.\21\ The NASD concluded that such 
delays do not appear to warrant enhancements to SOES.

    \21\ The NASD noted that the maximum delay for a recent day was 
87 seconds.
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    In further support of its proposal, the NASD continues to rely on 
the same arguments and justifications previously submitted to the 
Commission in support of the amendments to SOES. In the orders 
approving the January 1995, March 1995, and September 1995 Amended SOES 
Rules, however, the Commission expressed its belief that the data 
submitted by the NASD was inconclusive, demonstrating neither 
significant improvement to nor serious deterioration in the quality of 
the Nasdaq market subsequent to the adoption of the January 1994 
Amended SOES Rules.\22\ The information submitted by the NASD since its 
initial study, including the Monitoring Report, does not alter the 
Commission's original assessment. The Commission, therefore, continues 
to believe that the data submitted by the NASD demonstrates neither a 
significant improvement to nor serious deterioration in the quality of 
the Nasdaq market as a result of the adoption of the January 1994, 
January 1995, March 1995, and September 1995 Amended SOES Rules.\23\ 
Moreover, the Commission believes this is true whether the amended SOES 
rules are viewed collectively or individually. Thus, the Commission 
finds the data submitted by the NASD to be inconclusive. For the 
reasons discussed above, however, the Commission has determined to 
approve the proposal to extend the September 1995 Amended SOES Rules 
through July 31, 1996.

    \22\ See Securities Exchange Act Release Nos. 35275 (Jan. 25, 
1995), 60 FR 6327 (Feb. 1, 1995); 35535 (Mar. 27, 1995), 60 FR 16690 
(Mar. 20, 1995); 36311 (Sept. 29, 1995), 60 FR 52438 (Oct. 6, 1995).
    \23\ Nonetheless, the Commission continues to be interested in 
data and studies demonstrating the effect, if any, of the SOES rule 
changes on the Nasdaq market.
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IV. Conclusion

    As indicated above, the Commission has determined to approve the 
extension of the SOES Minimum Exposure Limit Rule and the SOES 
Automated Quotation Update Feature through July 31, 1996. In light of 
the balance of factors described above, the Commission believes 
extension of the reduction in the minimum exposure limit, the 
limitation of the exposure limit to unpreferenced orders, and the 
addition of an automation quotation update feature are consistent with 
the Act.
    The Commission, in the exercise of the authority delegated to it by 
Congress, and in light of its experience regulating securities markets 
and market participants, has determined that approval of these changes 
to the SOES Rules until July 31, 1996 is consistent with maintaining 
investor protection and fair and orderly markets, and that these goals, 
on balance, outweigh possible anti-competitive effects on order entry 
firms and their customers.
    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.
    The Commission finds good cause for approving the proposed rule 
change prior to the 30th day after the date of publication of notice of 
filing thereof in the Federal Register. In addition to the reasons 
discussed in this order, the Commission believes that accelerated 
approval of the NASD's proposal is appropriate given the fact that the 
proposal is an extension of the amended SOES Rules that have been in 
effect since March 1995; that the information presently before the 
Commission leads to the conclusion that the current minimum exposure 
limit and automated quotation update function are appropriate features 
for SOES while the Commission considers the NASD's NAqcess proposal; 
and that without Commission action on or before January 31, 1996, the 
SOES rules would revert to those in effect prior to January 1994, 
resulting in a temporary lapse in continuity.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the instant rule change SR-NASD-95-60 be, and hereby is, approved, 
effective February 1, 1996 through July 31, 1996.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-2464 Filed 2-5-96; 8:45 am]
BILLING CODE 8010-01-M