[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Notices]
[Pages 40693-40699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19836]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-37492; File No. SR-NASD-96-30]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Partial Accelerated Approval of Proposed Rule Change by 
National Association of Securities Dealers, Inc. Relating to an 
Extension and Permanent Approval of the NASD's Short Sale Rule

July 29, 1996.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on July 24, 1996, the National Association of Securities Dealers, Inc. 
(``NASD'' or ``Association'') filed with the Securities and Exchange 
Commission (``Commission'' or ``SEC'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by the NASD. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons. As 
discussed below, the Commission has also granted accelerated approval 
to a portion of the proposal.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The NASD is proposing to implement its short sale rule (``Rule'') 
on a permanent basis. With this filing, the NASD is also proposing a 
three-month extension of the pilot program for the short sale rule so 
that the effectiveness of the Rule does not lapse while the Commission 
considers the NASD's request for permanent approval of the Rule.
    The text of the proposed rule change with respect to the proposal 
to implement the short sale rule on a permanent basis is as follows 
(additions are in italics and deletions are bracketed):

NASD Rule 3350

* * * * *
    (k)(3)[(A) Until February 1, 1996, the term ``qualified market 
maker'' shall mean a registered Nasdaq market maker that has 
maintained, without interruption, quotations in the subject security 
for the preceding 20 business days. Notwithstanding the 20-day period 
specified in this subsection, after an offering in a stock has been 
publicly announced, a registration statement has been filed, or a 
merger or acquisition involving two issues has been announced, no 
market maker may register in the stock as a qualified market maker 
unless it meets the requirements set forth below:
    (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;
    (ii) For initial public offerings, the market maker may register in 
the offering and immediately become a qualified market maker; provided, 
however, that if the market maker withdraws on an unexcused basis from 
the security within the first 20 days of the offering, it shall not be 
designated as a qualified market maker on any subsequent initial public 
offerings for the next 10 business days;
    (iii) After a merger or acquisition involving an exchange of stock 
has been publicly announced and not yet consummated or terminated, a 
market maker may immediately register in either or both of the two 
affected securities as a qualified market maker pursuant to the same-
day registration procedures in Rule 4611; provided, however, that if 
the market maker withdraws on an unexcused basis from any stock in 
which it has registered pursuant to this subsection within 20 days of 
so registering, it shall not be designated as a qualified market maker 
pursuant to this subparagraph (3) for any subsequent merger or 
acquisition announced within three months subsequent to such unexcused 
withdrawal.
    (B) For purposes of this subparagraph (3), a market maker will be 
deemed to have maintained quotations without interruption if the market 
maker is registered in the security and has continued publication of 
quotations in the security through the Nasdaq on a continuous basis; 
provided, however, that if a market maker is granted an excused 
withdrawal pursuant to the requirements of Rule 4619, the 20 business 
day standard will be considered uninterrupted and will be calculated 
without regard to the period of the excused withdrawal. Beginning 
February 1, 1996, t]The term ``qualified market maker'' shall mean a 
registered Nasdaq market maker that meets the criteria for a Primary 
Nasdaq Market Maker as set forth in Rule 4612.
    [(1) This section shall be in effect until August 3, 1996.]
    The text of the proposed rule change with respect to the proposal 
to extend the short sale rule for a three-month period is as follows 
(additions are italics and deletions are bracketed):

NASD Rule 3350

* * * * *
    (1) This section shall be in effect until [August 3, 1996] November 
4, 1996.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NASD included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item V below. The NASD has prepared summaries, set forth in Sections A, 
B, and C below, of the most significant aspects of such statements.

[[Page 40694]]

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Background and Description of the NASD's Short Sale Rule
    On June 29, 1994, the SEC approved the NASD's short sale rule 
applicable to short sales \3\ in Nasdaq National Market (``NNM'') 
securities on an eighteen-month pilot basis through March 5, 1996.\4\ 
The NASD's short sale rule prohibits member firms from effecting short 
sales at or below the current inside bid as disseminated by Nasdaq 
whenever that bid is lower than the previous inside bid.\5\ The Rule is 
in effect during normal domestic market hours (9:30 a.m. to 4:00 p.m., 
Eastern Time).
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    \3\ A short sale is a sale of a security which the seller does 
not own or any sale which is consummated by the delivery of a 
security borrowed by, or for the account of, the seller. To 
determine whether a sale is a short sale, members must adhere to the 
definition of a ``short sale'' contained in Rule 3b-3, 17 CFR 
240.3b-3, which rule is incorporated into Nasdaq's short sale rule 
by NASD Rule 3350(k)(1).
    \4\ See Securities Exchange Act Release No. 34277 (June 29, 
1994), 59 FR 34885 (July 7, 1994) (``Short Sale Rule Approval 
Order''). The termination date for the pilot program was 
subsequently extended until August 3, 1996 due to delays in 
implementation of the NASD's Primary Market Maker Standards. See 
Securities Exchange Act Release Nos. 36171 (August 30, 1995), 60 FR 
46651; and 36532 (November 30, 1995), 60 FR 62519.
    \5\ Nasdaq calculates the inside bid or best bid from all market 
makers in the security (including bids on behalf of exchanges 
trading Nasdaq securities on an unlisted trading privileges basis), 
and disseminates symbols to denote whether the current inside bid is 
an ``up bid'' or a ``down bid.'' Specifically, an ``up bid'' is 
denoted by a green ``up'' arrow and a ``down bid'' is denoted by a 
red ``down'' arrow. Accordingly, absent an exemption from the rule, 
a member can not effect a short sale at or below the inside bid for 
a security in its proprietary account or a customer's account if 
there is a red arrow next to the security's symbol on the screen. In 
order to effect a ``legal'' short sale on a down bid, the short sale 
must be executed at a price at least a \1/16\th of a point above the 
current inside bid. Conversely, if the security's symbol has a 
green, up arrow next to it, members can effect short sales in the 
security without any restrictions.
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i. Market Maker Exemption
    In order to ensure that market maker activities that provide 
liquidity and continuity to the market are not adversely constrained 
when the short sale rule is invoked, the Rule provides an exemption to 
``qualified'' Nasdaq market makers. Even if a market maker is able to 
avail itself of the qualified market maker exemption, it can only 
utilize the exemption from the short sale rule for transactions that 
are made in connection with bona fide market making activity. If a 
market maker does not satisfy the requirements for a qualified market 
maker, it can remain a market maker in the Nasdaq system, although it 
can not take advantage of the exemption from the Rule.
    From September 4, 1994 through February 1, 1996, Nasdaq market 
makers who maintained a quotation in a particular NNM security for 20 
consecutive business days without interruption were exempt from the 
Rule for short sales in that security, provided that the short sales 
were made in connection with bona fide market making activity (``the 
20-day'' test). Since February 1, 1996 until the present, the ``20-
day'' test has been replaced with a four-part quantitative test known 
as the Nasdaq Primary Market Maker (``PMM'') Standards.
    Under the PMM Standards, a market maker must satisfy at least two 
of the following four criteria to be eligible for an exemption from the 
short sale rule: (1) the market maker must be at the best bid or best 
offer as shown on Nasdaq 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; (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; or (4) the market 
maker executes 1\1/2\ times its ``proportionate'' volume in the 
stock.\6\ If a market maker is a PMM for a particular stock, there is a 
``P'' indicator next to its quote in that stock. In addition, market 
makers are able to review their status as PMMs through their Nasdaq 
Workstation. The review period for satisfaction of the PMM performance 
standards is one calendar month. If a PMM has not satisfied the 
threshold standards after a particular review period, the PMM 
designation will be removed on the next business day following notice 
of failure to satisfy the standards. Market makers may requalify for 
designation as a PMM by satisfying the threshold standards in the next 
review period.
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    \6\ Specifically, the proportionate volume test requires a 
market maker to account for volume of at least one-and-a-half times 
its proportionate share of overall volume in the security for the 
review period. For example, if a security has 10 market makers, each 
market maker's proportionate share volume is 10 percent. Therefore, 
the proportionate share volume is one-and-a-half times 10, or 15 
percent of overall volume.
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    The ability of a member firm to achieve and maintain PMM status in 
80 percent of the NNM issues in which it is registered can also have 
the following corollary effects:
    a. Existing NNM Securities: If a member firm is a PMM in 80 percent 
or more of the securities in which it has registered, the firm may 
immediately become a PMM (i.e., a qualified market maker) in a NNM 
security by registering and entering quotations in that issue. If the 
member firm is not a PMM in at least 80 percent of its stocks, it may 
become a PMM in that stock if it registers in the stock as a regular 
Nasdaq market maker and satisfies the PMM qualification standards for 
the next review period.
    b. Initial Public Offerings (``IPOs''): If a member firm has 
obtained PMM status in 80 percent or more of the stocks in which it has 
registered, the firm may immediately become a PMM in an IPO by 
registering and entering quotations in the issue. However, if the firm: 
(1) withdraws from the IPO on an unexcused basis any time during the 
calendar month in which the IPO commenced trading on Nasdaq or (2) 
fails to meet the PMM standards for the month in which the IPO 
commenced trading on Nasdaq,\7\ then the firm is precluded from 
becoming a PMM in any other IPO for ten business days following the 
unexcused withdrawal of failure to meet the PMM standards (``10-day 
rule'').\8\
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    \7\ On June 20, 1996, the NASD submitted a rule filing to the 
SEC that clarified the applicable PMM review period for IPOs listed 
during the last five business days of a month. See Securities 
Exchange Act Release No. 37426 (July 11, 1996), 61 FR 37521 (File 
SR-NASD-96-25).
    \8\ The PMM rule also has provisions applicable to secondary 
offerings. Specifically, unless a market maker is registered in a 
security prior to the time a secondary offering in that stock has 
been publicly announced or a registration statement has been filed, 
it cannot become a PMM in the stock unless: (1) the secondary 
offering has become effective and the market maker has satisfied the 
PMM standards between the time the market maker registered in the 
security and the time the offering became effective or (2) the 
market maker has satisfied the PMM standards for 40 calendar days.
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    c. Merger and Acquisition Situations: after a merger or acquisition 
is announced, a market maker that is a PMM in one stock may immediately 
become a PMM in the other stock by registering and entering quotations 
in that issue.
ii. Options Market Maker Exemption
    In an effort to not constrain the legitimate hedging needs of 
options market makers, the NASD's short sale rule also contains a 
limited exception for standardized options market makers. Specifically, 
under the Rule, an NASD member may execute a short sale for the account 
of an equity option market maker or an index option market maker that 
would otherwise be in contravention of the NASD's short sale rule so 
long as: (1) the short sale is an ``exempt hedge transaction''; \9\ and 
(2)

[[Page 40695]]

the options market maker is registered with a ``qualified options 
exchange'' \10\ as a ``qualified options market maker'' \11\ in a stock 
options class overlying a NNM security or in an options class overlying 
a ``qualified stock index.'' \12\
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    \9\ For equity option market makers, an ``exempt hedge 
transaction'' is defined to be a short sale that was effected to 
hedge, and in fact serves to hedge, an existing offsetting options 
position or an offsetting options position that was created in a 
transaction(s) contemporaneous with the short sale, provided that 
when establishing the short position the options market maker 
receives, or is eligible to receive, good faith margin pursuant to 
Section 220.12 of Regulation T under the Act. For index option 
market makers, an ``exempt hedge transaction'' is defined to be a 
short sale in a NNM security that was effected to hedge, and in fact 
serves to hedge, an existing offsetting stock index options position 
or an offsetting stock index options position that was created in a 
transaction(s) contemporaneous with the short sale, provided that: 
(1) the security sold short must be a component security of the 
index underlying such index option; (2) the index underlying such 
offsetting index options position is a ``qualified stock index''; 
and (3) the dollar value of all exempt short sales effected to hedge 
the offsetting stock index options position(s) does not exceed the 
aggregate current index value of the offsetting options position(s).
    \10\ A ``qualified options exchange'' is defined to be a 
national securities exchange that has received SEC approval of its 
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 withdraw, suspend, or modify the 
designation of a qualified options market maker in the event that 
the options exchange determines that the qualified options market 
maker has failed to comply with the terms of the exemption and the 
exchange believes that such action is warranted in light of the 
substantial, willful, or continuing nature of the violation. All 
national securities exchanges that trade standardized options are 
``qualified options exchanges.''
    \11\ An options market maker is a ``qualified options market 
maker'' if it has been appointed as such by a qualified options 
exchange.
    \12\ A ``qualified stock index'' is defined to be a stock index 
that includes one or more NNM securities, provided that more than 
10% of the weight of the index is accounted for by NNM securities. 
In addition, qualified stock indexes are reviewed as of the end of 
each calendar quarter, and an index would cease to qualify if the 
value of the index represented by one or more NNM securities was 
less than 8 percent at the end of any subsequent calendar quarter.
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iii. Warrant Market Maker Exemption
    The Rule also contains an exemption for warrant market makers 
similar to the one available for options market makers. To be eligible 
for the exemption, a warrant market maker must be registered as a 
market maker in the warrant and the short sale must be an ``exempt 
hedge transaction'' \13\ that results in a fully hedged position. Any 
short sale by a warrant market maker unrelated to normal warrant market 
making activity, such as index arbitrage or risk arbitrage that in 
either case is independent of a warrant market maker's market making 
functions, is not considered an ``exempt hedge transaction'', however.
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    \13\ An ``exempt hedge transaction'' is a short sale in an NNM 
security that was effected to hedge, and in fact serves to hedge, an 
existing offsetting warrant position that was created in a 
transaction contemporaneous with the short sale.
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iv. Exemptions Comparable to Those Contained in Rule 10a-1
    The NASD's short sale rule also incorporates seven exemptions 
contained in Rule 10a-1 \14\ that are relevant to trading on Nasdaq. 
Specifically the rule exempts:
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    \14\ 17 CFR 240.10a-1.
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     Sales by a broker-dealer for an account in which it has no 
interest and that is marked long;
     Any sale by a market maker to offset odd-lot orders of 
customers;
     Any sale by any person, for an account in which he has an 
interest, if such person owns the security sold and intends to deliver 
such securities as soon as possible without undo inconvenience or 
expense;
     Sales by a member to liquidate a long position which is 
less than a round lot, provided the sale does not change the member's 
position by more than one unit of trading (100 shares);
     Short sales effected by a person in a special arbitrage 
account;\15\
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    \15\ In order to fall within this exemption, the person 
effecting the short sale must then own another security by virtue of 
which the person is, or presently will be, entitled to acquire an 
equivalent number of securities of the same class of securities sold 
short, provided the short sale, or the purchase which such sale 
offsets, is effected for the bona fide purpose of profiting from a 
current difference between the price of the security sold short and 
the security owned, and such right of acquisition was originally 
attached to or represented by another security or was issued to all 
the holders of any such class of securities of the issuer.
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     Short sales effected by a person in a special 
international arbitrage account; \16\ and
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    \16\ In order to fall within this exemption, the short sale must 
be effected for the bona fide purpose of profiting from a current 
difference between the price of such security on a securities market 
not within or subject to the jurisdiction of the United States and a 
securities market subject to the jurisdiction of the United States, 
provided the person at the time of such sale knows or, by virtue of 
information currently received, has reasonable grounds to believe 
that an offering enabling a person to cover such sale is then 
available to the person in such foreign securities market and 
intends to accept such offer immediately.
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     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 such a person in connection with a 
distribution of securities rights pursuant to Rule 10b-18 \17\ or a 
standby underwriting commitment.
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    \17\ 17 CFR 240.10b-18.
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    The Rule also provides that a member not currently registered as a 
Nasdaq market maker in a security that has acquired the security while 
acting in the capacity of a block positioner shall be deemed to own 
such security for the purposes of the Rule notwithstanding that such 
member may not have a net long position in such security if and to the 
extent that such member's short position in such security is subject to 
one or more offsetting positions created in the course of bona fide 
arbitrage, risk arbitrage, or bona fide hedge activities. In addition, 
the NASD has recognized that SEC staff interpretations to Rule 10a-1 
dealing with the liquidation of index arbitrage positions \18\ and an 
``international equalizing exemption'' \19\ are equally applicable to 
the NASD's short sale rule.
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    \18\ In 1986, the SEC took a ``no action'' position that, under 
certain conditions, permits broker-dealers not to aggregate certain 
short positions when liquidating index arbitrage positions involving 
long stock. This no-action position was clarified in a later SEC 
Release and the SEC has proposed to amend Rule 10a-1 to incorporate 
this interpretation. See Securities Exchange Act Release No. 30772 
(June 3, 1992) 57 FR 24415.
    \19\ Specifically, the NASD has interpreted its short sale rule 
to provide that any person can sell a foreign security, or a 
depositary share or depositary receipt relating to such a security, 
on a down bid at the opening, provided the inside bid is equal to or 
above the last reported sale price (adjusted for current exchange 
rates and ADR multiples) of the security in the principal foreign 
market for that security.
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v. Interpretations to the NASD's Short Sale Rule
    In conjunction with the adoption of the short sale rule, the NASD 
also issued three Interpretations by the NASD Board of Governors 
dealing with the Rule. Interpretation A to the Rule clarifies some of 
the factors that will be taken into consideration when reviewing market 
making activity that may not be deemed to be bona fide market making 
activity and, therefore, not exempt from the Rule's application.\20\ 
Interpretation B defines a ``legal'' short sale on a down bid as one 
that is executed at a price of at least a \1/16\th of a point above the 
current inside bid. Finally, Interpretation C clarifies some of the 
circumstances under which

[[Page 40696]]

a member would be deemed to be in violation of the Rule.\21\
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    \20\ Specifically, Interpretation A provides that bona fide 
market making activity does not include activity that is unrelated 
to market making functions, such as index arbitrage and risk 
arbitrage that is independent from a member's market making 
functions. Similarly, the Interpretation states that bona fide 
market making would exclude activity that is related to speculative 
selling strategies of the member or investment decisions of the firm 
and is disproportionate to the usual market making patterns or 
practices of the member in that security. In addition, the 
Interpretation provides guidance with respect to what constitutes 
bona fide market making in the context of a merger or acquisition 
situation.
    \21\ Specifically, the Interpretation contains the following 
non-exhaustive list of activities that would be considered to be 
manipulative acts and violations of the rule: (a) in instances where 
the current best bid is below the preceding best bid, if a market 
maker alone at the inside best bid were to lower its bid and then 
raise it to create an ``up bid'' for the purpose of facilitating a 
short sale; (b) if a market maker with a long stock position were to 
raise its bid above the inside bid and then lower it to create a 
``down bid'' for the purpose of precluding market participants from 
selling short; (c) if a market maker agrees to an arrangement 
proposed by a member or a customer whereby 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; and (d) if a market 
maker entered into an arrangement with a member or a customer 
whereby it used its exemption from the rule to sell short at the bid 
at successively lower prices, accumulating a short position, and 
subsequently offset 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.
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2. Proposal To Adopt the Short Sale Rule on a Permanent Basis
    When the Commission approved the NASD's short sale rule on a 
temporary basis, it made specific findings that the Rule was consistent 
with Sections 11A, 15A(b)(6), 15A(b)(9), and 15A(b)(11) of the Act. 
Specifically, the Commission stated that, ``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.'' \22\ In addition, the Commission stated that 
it ``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.'' \23\ Nevertheless, in light of the Commission's 
concerns with adverse comments made about the Rule and the Commission's 
own concerns with the structure and impact of the Rule,\24\ the 
Commission determined to approve the Rule on a temporary basis to 
afford the NASD and the SEC an opportunity to study the effects of the 
Rule and its exemptions. In particular, before considering any NASD 
proposal to extend, modify, permanently implement or terminate the 
Rule, the Commission requested that the NASD examine: (1) the effects 
of the Rule on the amount of short selling; (2) the length of time that 
the Rule is in effect (i.e., the duration of down bid situations); (3) 
the amount of non-market maker short selling permitted under the Rule; 
(4) the extent of short selling by market makers exempt from the Rule; 
(5) whether there have been any incidents of perceived ``abuse short 
selling''; (6) the effects of the Rule on spreads and volatility; (7) 
whether the behavior of bid prices has been significantly altered by 
the Rule; and (8) the effect of permitting short selling based on a 
minimum increment of \1/16\th.
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    \22\ See Short Sale Rule Approval Order, supra note 3, 59 FR at 
34891.
    \23\ Id. 59 FR at 34892.
    \24\ When the NASD's short sale rule was first considered by the 
Commission, the SEC received 397 comment letters on the proposal, 
with 275 comments opposed to the Rule and 122 comments in favor of 
the Rule. Those comment letters opposed to the Rule argued that: (1) 
the NASD had failed to provide sufficient evidence of the need for a 
short sale rule or demonstrate the appropriateness of a short sale 
rule based on a ``bid'' test instead of a ``tick'' test; (2) the PMM 
standards will have negative effects on both market makers and the 
Nasdaq market; and (3) the short sale rule is inconsistent with the 
requirements of the Act.
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    Accordingly, in response to the Commission's requests and concerns, 
the NASD's Economic Research Department has prepared a study on the 
economic impact of the NASD's short sale rule that addresses these 
issues.\25\ This study examined market activity both before and after 
implementation of the Rule and found that the Rule has had its intended 
effect of diminishing short selling at the bid in declining markets, 
while still allowing short sales to occur at prices slightly above the 
bid in down bid situations. Specifically, among other things, the Short 
Sale Study found that:
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    \25\ The Economic Impact of the Nasdaq Short Sale Rule, NASD 
Economic Research Department (July 1996) (``Short Sale Study''). A 
copy of the Short Sale Study is available in the Commission's Public 
Reference Room in File No. SR-NASD-96-30.
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     The Rule appears to dramatically reduce the amount of the 
short selling on down-bids, without having the undesirable effect of 
driving away all non-exempt short sales on down bids;
     Stocks with large down-bid percentages (i.e., the average 
percentage of time during the trading day that the Rule is invoked) are 
not associated with economically-large reductions in market quality, as 
measured by relative displayed spreads, percent bid range, and trading 
activity;
     For stocks with large monthly increases in short interest, 
implementation of the Rule has been associated with lower bid price 
volatility and narrower dollar spreads;
     The Rule does not appear to have reduced overall sales at 
the bid by non-exempt sellers (long and short sales combined). Thus, 
since short sales at the bid on down bids by non-exempt short sellers 
are prohibited,\26\ the results illustrate that short sales at the bid 
have been replaced by long sales at the bid during down-bids for these 
securities; Apparent ``unnatural'' bid price movement occurred 
extremely infrequently (0.6 percent or fewer of all bid changes 
evaluated in the study), indicating that market makers are not 
attempting to move bids to invoke or deactivate the Rule;
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    \26\ Specifically, the Short Sale Study found that only 2.8 
percent of short sales by non-exempt short sellers occur at or below 
the inside bid in down-bid situations. Since the short sale rule 
prohibits short sales at the bid on down bids, this figure should 
theoretically be zero. Reasons why this figure is 2.8 percent 
include, among others, improper alignment of trades and their 
corresponding inside quotes, potential reporting errors, and 
violations of the Rule.
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     On a stock-by-stock basis, the percentage of volume 
accounted for by short sales increases as the stock experiences larger 
price declines as opposed to price increases or no price changes, 
suggesting that speculative short selling is more apt to occur when 
stock prices are falling; and
     Exempt short sales generally are executed above the bid, 
indicating that market makers are not abusing the exemption. 
Specifically, in a down-bid environment, 7.5 percent of exempt short 
sales are executed at or below the bid, while the comparable figure 
during an up-bid environment is 8.7 percent.
    The interviews conducted in conjunction with the Study also 
indicate that the Rule has been effective in promoting the integrity of 
the Nasdaq market. Specifically, most market participants interviewed 
stated that the Rule has had the effect of slowing down the ``piling 
on'' of short sales in a declining market, thereby contributing to 
greater market stability. At the same time, market participants 
indicated that the Rule does not unduly constrain them from effecting 
short sales in a declining market, although they say it does take them 
longer to execute short sales in a falling market. Most market 
participants interviewed also stated that the exemptions from the Rule 
are warranted and have not been abused. In particular, most market 
participants interviewed reiterated the importance of retaining the 
market maker exemption and stated that there is no need to change the 
PPM standards. Similarly, the American Stock Exchange and the Chicago 
Board Options Exchange, the two largest standardized options markets in 
the United States, both stated that the options market maker exemption 
has performed well and that the exchanges have not detected any abuses 
of the exemption by their members. In sum, the NASD believes

[[Page 40697]]

that the market participant interviews corroborate and provide further 
support for the empirical findings made in the quantitative portion of 
the Short Sale Study. Namely, that the NASD's short sale rule has been 
effective in accomplishing what the NASD intended the rule to 
accomplish (i.e., reducing speculative short selling at the bid in 
declining markets) without causing unnecessary disruptions elsewhere in 
the marketplace. Accordingly, the NASD believes the Short Sale Study 
reaffirms and substantiates the statutory findings made by the 
Commission when it approved the NASD's short sale rule on a temporary 
basis.
    Thus, the NASD believes experience with the NASD's short sale rule 
since its implementation in September 1994 warrants permanent approval 
of the Rule. Specifically, the NASD believes experience with the Rule 
illustrates and substantiates the benefits to investors and the 
integrity of Nasdaq that the NASD believed would result from the rule. 
Namely, that wit the Rule in place purchasers of NNM securities have 
greater assurance that they can liquidate their positions in a 
declining market without predatory short sellers exacerbating downward 
pressure on stocks and reducing overall liquidity. I sum, the NASD 
continues to believe that its short sale rule strikes a reasonable 
balance between the needs to prevent abuse short selling and reduce the 
exposure of the Nasdaq market to manipulative and excessive intra-day 
volatility, on the one hand, and the need to not distort the pricing 
efficiency and liquidity provided by appropriate short selling activity 
on the other.
    Based on experience with the short sale rule, the NASD also 
believes the Rule should be permanently approved in its present form. 
Specifically, given the geographically dispersed nature of Nasdaq's 
competing dealer market structure, the NASD continues to believe that 
it is appropriate for its short sale rule to be based on a ``bid'' test 
\27\ instead of a ``tick'' test \28\ (as is the case with Rule 10a-1). 
When the NASD's short sale rule was first considered by the Commission 
in 1994, the SEC and commentators expressed concern that structuring 
the Rule as a ``bid'' test instead of a ``tick'' test could result in 
the Rule being in effect for longer periods of time in comparison to a 
``tick'' test. The SEC also expressed concern that market markers could 
control the amount of short selling by simple adjusting their bids. 
Based on the findings of the Short Sale Study, however, the NASD 
believes these concerns are no longer valid. First, while the Study 
clearly found that the Rule is having its intended effect of inhibiting 
the execution of non-exempt short sales at the bid in a declining 
market, the Study also found that market participants are nevertheless 
readily able to effect short sales at prices slightly above ``down'' 
bids.\29\ Similarly, several market participants interviewed in 
conjunction with the preparation of the Study stated that the Rule has 
not adversely impacted their ability to effect short sales, just that 
it takes them longer to effect such short sales. Second, the Study's 
finding that apparent ``unnatural'' quote movements have occurred very 
infrequently indicates that market makers are not adjusting their 
quotes to facilitate or constrain short selling activity.\30\ 
Accordingly, the NASD continues to believe that a ``bid'' test short 
sale rule is the most appropriate for Nasdaq's competing dealer market. 
Moreover, the NASD notes that SEC approval of the NASD's proposed 
NAqcess system and its accompanying ``equivalent protection rules,'' 
\31\ along with the SEC's own proposed rule governing the display of 
customers limit orders,\32\ would substantially increase the ability of 
non-exempt short sellers to receive executions at prices at least a \1/
16\th of a point above the bid in down bid situations, thereby 
minimizing the impact of the Rule on legitimate short selling activity.
---------------------------------------------------------------------------

    \27\ The NASD's short sale rule is commonly referred to as a 
``bid'' test because it is activated based upon movements in the 
inside bid on Nasdaq.
    \28\ Rule 10a-1 is commonly referred to as a ``tick'' test 
because it is activated based on movements in the last sale prices 
of securities.
    \29\ See Short Sale Study, supra note 25.
    \30\ See Short Sale Study, supra note 25.
    \31\ See Securities Exchange Act Release No. 37302 (June 11, 
1996), 61 FR 31574.
    \32\ See Securities Exchange Act Release No. 36310 (September 
29, 1995), 60 FR 52792.
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    In addition, based on the Short Sale Study's finding that the 
amount of exempt short selling occurring at or below the bid is 
virtually the same in both down-bid and up-bid situations and the fact 
that market makers do not appear to be adjusting their quotes to 
constrain or facilitate short selling, the NASD can find no basis to 
conclude that the market maker exemption should be modified. The NASD 
continues to believe that an exemption from the rule for bona fide 
market making activity by market makers who provide liquidity and 
continuity to the market is essential for the maintenance of fair and 
orderly markets on Nasdaq. In this connection, the NASD also believes 
the current primary market maker standards represent a reasoned, 
balanced approach to confine the use of the exemption to those market 
participants truly adding liquidity and depth to the market. The NASD 
also believes the qualification criteria do not impose standards that 
are unattainable by both small and large market makers because the 
standards are designed to assess market maker performance in the 
activities they have direct control over (although the proportional 
volume standard is the only standard that a market maker may have less 
control over).\33\
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    \33\ The NASD also continues to believe that it is appropriate 
and consistent with the Act for the NASD's short sale rule to exempt 
certain qualified market makers while Rule 10a-1 does not provide an 
exemption for exchange specialists other than the limited exemption 
contained in Rule 10a-1(e)(6) for specialists on regional exchanges. 
Specifically, the NASD believes the following differences between 
the dealer and auction markets warrant the retention of the market 
maker exemption from the Rule: (1) exchange specialists have a 
monopoly over the securities in which they trade; (2) dealers 
generally do not have an informational advantage over other dealers; 
and (3) dealers do not have the ability to close their markets 
because of sudden volatility or an order imbalance.
---------------------------------------------------------------------------

    The NASD also notes that retention of the NASD's short sale rule 
has significant competitive implications. Indeed, in the Short Sale 
Rule Approval Order, the Commission stated that it ``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 the claim that their markets protect against potential 
short selling abuse.'' \34\ Given that experience with the NASD's short 
sale rule over the past two years illustrates that the Rule provides 
investors and the marketplace with protections against predatory short 
selling comparable to Rule 10a-1, the NASD believes the competitive 
disadvantages highlighted by the Commission would become severe if the 
NASD's short sale rule were not permanently approved. In particular, 
without permanent approval of the NASD's short sale rule, Nasdaq could 
potentially loose issuers to other marketplaces simply because those 
markets have a short sale rule in place which is very similar to the 
NASD's short sale rule. Moreover, aside from these serious competitive 
concerns, the NASD believes it should be allowed to continue to 
implement a rule that affords investors the same protections against 
abusive short selling activity when trading NNM securities that they 
receive when trading exchange-listed securities by virtue of Rule 10a-
1.
---------------------------------------------------------------------------

    \34\ Short Sale Rule Approval Order, supra note 4, 60 FR at 
34891.
---------------------------------------------------------------------------

    In this connection, even if the Commission were to conclude that 
the

[[Page 40698]]

NASD's short sale rule has had no impact on market quality, the NASD 
believes the Commission's approval of New York Stock Exchange 
(``NYSE'') Rule 80A\35\ illustrates that the Commission would still 
have a sufficient basis to approve the Rule on a permanent basis. When 
NYSE Rule 80A was proposed, the Commission received considerable 
adverse comment to the effect that there was no casual relationship 
between index arbitrage and market volatility and that activation of 
the rule during turbulent market conditions could have disastrous 
effects on related options and futures markets and actually exacerbate 
market volatility. Despite these comments, the Commission approved the 
proposal on a one-year pilot basis noting that ``the NYSE proposal 
represents a modest step, proposed on a pilot basis, to attempt to 
address the issue of market volatility.'' \36\ After the one year 
pilot, the NYSE prepared a report that, in the SEC's words, found that 
``the standard measures of NYSE market quality appear largely 
unaffected by Rule 80A. Specifically, the NYSE Report indicated that: 
(1) quotes on the NYSE did not widen after the 50 DJIA point trigger 
was reached; and (2) the imposition of Rule 80A did not have any 
negative effect on price continuity and depth in the market.\37\ In 
addition, in approving Rule 80A on a permanent basis, the SEC noted 
that the rule ``represents a modest but useful step by the NYSE to 
attempt to address the issue of market volatility,'' \38\ that the rule 
``has not been disruptive to the marketplace'',\39\ and that there was 
a ``lack of evidence of any harmful effects of Rule 80A.''\40\ In sum, 
the SEC discussion of the statutory basis for approval of NYSE Rule 80A 
focused in large part on the fact that Rule 80A did not have any 
adverse impacts on market quality on the NYSE and that, as a result, 
the NYSE should be given the latitude to take reasonable steps to 
address excessive volatility in its marketplace. Accordingly, the NASD 
believes the SEC should afford the NASD the same regulatory flexibility 
that it afforded the NYSE and permit the NASD to permanently implement 
a short sale rule reasonably designed to enhance the quality of Nasdaq 
and minimize the effects of abusive short selling practices.
---------------------------------------------------------------------------

    \35\ Rule 80A provides that when the Dow Jones Industrial 
Average declines or advances by 50 points or more, all index 
arbitrage orders to sell or buy must be executed in a market 
stabilizing manner.
    \36\ See Securities Exchange Act Release No. 28282 (July 30, 
1990), 55 FR 31468, 31472 (Order approving File Dos. SR-NYSE-90-5 
and 90-11).
    \37\ See Securities Exchange Act Release No. 29854 (October 24, 
1994), 56 FR 55963 (October 30, 1994) (order approving file SR-NYSE-
91-21) (``Rule 80A Approval Order'').
    \38\ Id. 56 FR at 55967.
    \39\ Id.
    \40\ Id. 56 FR at 55967-68.
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    The NASD believes the proposed rule change is consistent with 
Section 15A(b)(6), 15A(b)(9), 15A(b)(11), and 11A of the Act. Section 
15A(b)(6) requires that the rules of a national securities association 
be designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, and to remove impediments to 
and perfect the mechanism of a free and open market. Specifically, the 
NASD believes its short sale rule is consistent with Section 15A(b)(6) 
of the Act because the Rule is premised on the same antimanipulation 
and investor protection concerns that underlie the SEC's own short sale 
rule, Rule 10a-1. In particular, as with Rule 10a-1, the NASD's short 
sale rule promotes just and equitable principles of trade by permitting 
long sellers access to market prices at any time, while constraining 
the execution of potentially abusive and manipulative short sales at or 
below the bid in a declining market. In addition, as with Rule 10a-1, 
the NASD's short sale rule removes impediments to a free and open 
market for long sellers and helps to assure liquidity at bid prices 
that might otherwise be usurped by short sellers. Lastly, because the 
immediate beneficiaries of the Rule are shareholders of NNM companies, 
the Rule is designed to protect investors and the public interest. At 
the same time, given that the NASD's short sale rule does not constrain 
short sales in a raising market or prohibit the execution of short 
sales in a declining market above bid prices, the NASD believes the 
Rule does not diminish the important pricing efficiency and liquidity 
benefits that legitimate short selling activity provides.
    Section 15A(b)(9) provides that the Association's rules may not 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. While the NASD's short sale 
rule does impose compliance burdens on market participants and 
conditions the execution of short sales in a declining market, the NASD 
believes these burdens and restrictions are necessary in furtherance of 
the protection of investors and the integrity of the Nasdaq market. 
Specifically, by implementing a short sale that is designed to protect 
investors and issuers from predatory short selling practices, reduce 
the exposure of Nasdaq to manipulation and extreme intraday volatility, 
and afford investors in Nasdaq securities the same protections against 
abusive short selling that investors in exchange-listed securities 
presently receive, the NASD believes its proposal is consistent with 
the Act and that any burdens or competition resulting from the Rule do 
not outweigh the overall benefits to investors that the Rule provides.
    Section 15A(b)(11) empowers the NASD to adopt rules governing the 
form and content of quotations relating to securities in the Nasdaq 
market. Such rules must be designed to produce fair and informative 
quotations, prevent fictitious and misleading quotations, and promote 
orderly procedures for collecting and distributing quotations. 
Specifically, by minimizing the extreme intra-day price volatility 
associated with abusive short selling activity, the NASD believes its 
short sale rule prevents misleading quotations and promotes more 
orderly quotation movements, particularly in a declining market. In 
addition, the NASD believes its primary market maker standards provide 
an incentive for market makers to improve the quality of their 
quotations.
    The NASD also believes that the proposed rule change is consistent 
with the significant national market system objectives contained in 
Section 11A of the Act. Specifically, Section 11A(a)(1)(C) provides 
that it is in the public interest and appropriate for the protection of 
investors and the maintenance of fair and orderly markets to assure, 
among other things, (i) the economically efficient execution of 
securities transactions; (ii) fair competition among brokers and 
dealers; and (iii) the practicality of brokers executing investors 
orders in the best market. Specifically, by minimizing the 
destabilizing influences of abusive short selling activity, the NASD 
believes all of these objectives will be advanced. Similarly, Section 
11A(c)(1)(F) assures the ``equal regulation of all markets for 
qualified securities and all exchange members, brokers, and dealers 
effecting transactions in such securities.'' Because approval of the 
NASD's proposal would result in equivalent short sale regulation in the 
exchange and Nasdaq markets, the NASD believes its proposal is 
consistent with Section 11A(c)(1)(F).
    In addition, the NASD notes that the SEC cited the NASD's adoption 
of a short sale rule as a basis to question whether its recently 
proposed Rule 105 of Regulation M is necessary at all.

[[Page 40699]]

Specifically, in proposing Rule 105, which liberalizes current Rule 
10b-21 \41\ government short sales in connection with a secondary 
offering, the SEC stated:

    \41\ 17 CFR 240.10b-21.
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    Since the adoption of Rule 10b-21, several additional regulatory 
measures have been implemented that may lessen the effects of short 
selling in connection with an offering. These initiatives, which 
include permitting passive market making during offerings of Nasdaq 
securities and implementing a short sale rule for the Nasdaq market, 
may reduce the need for Rule 105. (Footnote omitted).\42\

    \42\ See Securities Exchange Act Release No. 37094 (April 11, 
1996), 61 FR 17108, 17126.
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The NASD believes it would be inconsistent for the SEC to not 
permanently approve the NASD's short sale rule and yet approve another 
SEC rule that liberalizes current Rule 10b-21 or eliminate it 
altogether because of, among other things, the presence of the NASD's 
short sale rule.
    Lastly, the NASD believes that extending the effectiveness of the 
short sale rule for an additional three-month period while the SEC 
reviews the NASD's proposal for permanent approval of the Rule would 
avoid the confusion in the marketplace that would result if the Rule 
were to lapse for three months and then be reinstated later. Finally, 
the NASD believes that extending the pilot period for the short sale 
Rule will help to ensure that future regulatory action taken with 
respect to the Rule is based on a greater knowledge and understanding 
of the Rule.

B. Self-Regulatory Organization's Statement on Burden on Competition

    As discussed above in Section II. A., the NASD believes that the 
proposed rule change will not result in any burden on competition that 
is not necessary or appropriate in furtherance of the purposes of the 
Act. The NASD believes the primary market makers of all sizes to 
qualify as primary market makers. Moreover, it is important to note 
that market makers that do not meet the standards are still permitted 
to remain registered market makers in the Nasdaq system. In addition, 
without a short sale rule for the Nasdaq market, Nasdaq would be 
adversely impacted in its ability to compete for listing with exchange 
markets.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The NASD requests that the Commission find good cause pursuant to 
Section 19(b)(2) for approving that part of the proposed rule change 
that requests a three month extension of the pilot program for the Rule 
prior to the 30th day after publication in the Federal Register. With 
regard to the request for permanent approval of the Rule, within 35 
days of the date of publication of this notice in the Federal Register 
or within such longer period (i) as the Commission may designate up to 
90 days of such date if it finds such longer period to be appropriate 
and publishes its reasons for so finding or (ii) as to which the NASD 
consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Commission's Findings and Order Granting Partial Accelerated 
Approval of Proposed Rule Change

    The Commission finds that the proposal to extend the short sale 
rule for a three-month period is consistent with the Act and the rules 
and regulations promulgated thereunder. Specifically, the Commission 
finds that the proposed rule change is consistent with Section 
15A(b)(6) which requires that the NASD rules be designed, among other 
things, to facilitate securities transactions and protect investors and 
the public interest. Further, the Commission finds good cause to 
approve a temporary three-month extension of short sale rule pilot 
prior to the 30th day after the date of publication of notice of filing 
in that accelerated approval will avoid disrupting the market while the 
Commission considers the NASD's request for permanent approval.

V. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549. Copies 
of the submission, all subsequent amendments, all written statements 
with respect to the proposed rule change that are filed with the 
commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for inspection and copying in the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
NASD. All submissions should refer to the file number in the caption 
above and should be submitted by August 26, 1996.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the portion of the proposed rule change (SR-NASD-96-30) providing 
a three-month extension of the NASD's pilot short sale rule is approved 
until November 4, 1996.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\43\
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    \43\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-19836 Filed 8-2-96; 8:45 am]
BILLING CODE 8010-01-M