[Federal Register Volume 61, Number 203 (Friday, October 18, 1996)]
[Notices]
[Pages 54481-54483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26783]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-37810; File No. SR-PSE-96-09]


Self-Regulatory Organizations; Pacific Stock Exchange, Inc.; 
Order Approving Proposed Rule Change by the Pacific Stock Exchange 
Incorporated and Notice of Filing and Order Granting Accelerated 
Approval of Amendment No. 2 to Proposed Rule Change Relating to the 
Options Book Pilot Program

October 11, 1996.

I. Introduction

    On April 1, 1996, the Pacific Stock Exchange, Inc. (``PSE'' or 
``Exchange'') submitted to the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposal to establish a pilot program under which a limited number of 
lead market makers (``LMMs'') will be able to assume operational 
responsibility for the options public limit order book (``Book'') in 
certain options issues.\3\ The Exchange filed an amendment (``Amendment 
No. 1'') \4\ to the proposed rule change on June 4, 1996. The proposed 
rule change was published for comment in the Federal Register on June 
27, 1996.\5\ The Exchange filed a second amendment (``Amendment No. 
2'') to the proposed rule change on October 3, 1996.\6\ No comments 
were received on the proposed rule change. This order approves the 
Exchange's proposal.
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    \1\ 15 U.S.C. 78s(b)(1) (1988).
    \2\ 17 CFR 240.19b-4.
    \3\ An ``options issue'' refers to all types of options 
contracts (puts and calls) of the same class of options covering the 
same underlying stock. See PSE Rule 6.1(a) (7) and (10).
    \4\ Amendment No. 1 adds a provision to proposed PSE Rule 6.82, 
Commentary .05 stating that no market maker cooperatives may 
participate as LMMs in the pilot program. Amendment No. 1 also 
replaces a PSE Rule 6.82, Commentary .05 reference to ``April --, 
1997'' as the proposed expiration date for the pilot program, with a 
reference to ``[Date]''. Letter from Michael D. Pierson, Senior 
Attorney, Market Regulation, PSE, to Michael Walinskas, Special 
Counsel, Office of Market Supervision (``OMS''), Division of Market 
Regulation (``Division''), Commission, dated June 4, 1996.
    \5\ See Securities Exchange Act Release No. 37335 (June 19, 
1996), 61 FR 33568.
    \6\ Letter from Michael D. Pierson, Senior Attorney, Market 
Regulation, PSE, to Janet Russell-Hunter, Special Counsel, Office of 
Market Supervision (``OMB''), Division of Market Regulation 
(``Division''), Commission, dated October 3, 1996. Amendment No. 2 
clarifies the purpose of the proposal, amends proposed Rule 6.82(h) 
to change a reference to another part of the rule, and requests 
accelerated approval of Amendment No. 2.
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II. Description of the Proposal

    The Exchange proposes to amend its rules governing LMMs to allow 
approved LMMs to manage the Book function in certain designated options 
issues. The Exchange believes that the proposed rule change will give 
the Exchange greater flexibility in the operation of its lead market 
maker program (``LMM Program''). It will allow approved LMMs to have 
greater control over their operations on the Exchange floor. In 
particular, it will allow them to set rates for execution services 
provided to customers, in a manner similar to that exercised by options 
specialists at other exchanges and Designated Primary Market Markers at 
the Chicago Board Options Exchange. Accordingly, the Exchange believes 
that the rule change will make the PSE's LMM Program more 
competitive.\1\
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    \7\ Amendment No. 2, supra note 6.
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    The Book pilot program will be implemented on a limited basis, 
involving no more than three LMMs and no more than forty options 
symbols in total,\8\ during a one-year pilot phase. No market maker 
cooperatives will be permitted to participate in the pilot.\9\ The 
Exchange will evaluate the program, and, six months prior to its 
expiration, will determine whether to modify it and whether to seek 
permanent approval from the Commission. Under the pilot, the designated 
LMMs will manage the Book function, take responsibility for trading 
disputes and errors, set rates for Book execution, and pay the Exchange 
a fee for systems and services.
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    \8\ Amendment No. 1, supra note 4.
    Each options issue typically has only one symbol associated with 
it, unless LEAPs are traded on that issue, in which case there 
usually would be two additional symbols related to the issue, or 
unless a contract adjustment is necessary due, for example, to a 
merger or stock split, in which case one additional symbol usually 
would be added.
    \9\ Amendment No. 1, supra note 4.
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    The LMMs who participate during the pilot phase will be selected by 
the Options Floor Trading Committee based on some or all of the 
following factors: experience with trading an options issue as a market 
maker or LMM and willingness to assume LMM responsibilities; trading 
volume of the options issue(s); adequacy of capital; willingness to 
promote the Exchange as a marketplace; history of adherence to Exchange 
rules and securities laws; trading crowd/LMM evaluations conducted 
pursuant to Options Floor Procedure Advice B-13; and ability to manage 
the Book operation. Only dually- or multiple-traded options issues will 
be eligible during the pilot phase.
    The Exchange proposes to amend its Rule 6.82 to provide that, 
subject to the approval of the Exchange, LMMs will be eligible to 
perform all functions of the Order Book Official (``OBO'') in 
designated options issues pursuant to Rules 6.51 through 6.59. In that 
regard, the Exchange will allow the LMM to use Exchange personnel to 
assist the LMM in performing the OBO function, and the Exchange will 
charge the LMM a reasonable fee for such use of Exchange personnel. If 
the program is made permanent, it is contemplated that LMMs would be 
responsible for hiring and maintaining their own employees, but the 
Exchange would provide employees to assist LMMs when necessary due to 
market conditions. Whether employed by LMMs or by the Exchange, 
however, employees working in the Book operation will be subject to all 
rules, policies, and procedures established by the Exchange. In 
addition, LMMs will be required to resolve trading disputes, subject to 
the review of two floor officials, upon the request of any party to 
such dispute. LMMs also will be required to disclose Book information 
to members upon request, pursuant to PSE Rule 6.57.
    With regard to their duties as market makers, LMMs will be required 
to perform all obligations provided in Rules 6.35 through 6.40 and 
6.82(c). In addition, in executing transactions for their own ``market 
maker'' accounts, LMMs will have a right to participate pro rata with 
the trading crowd in trades that take place at the LMM's principal bid 
or offer.
    The proposal further provides that if the Options Allocation 
Committee decides to reallocate an options issue to the market maker 
system pursuant to PSE Rule 6.82(f)(i),\10\ the terminated LMM may 
receive a proportionate share of the net Book revenues, not to exceed 
one-half, for any period specified by the Options Appointment Committee 
up to a maximum of five years. The decision to make an award will be 
based on various factors, including: the length of the time of LMM 
service, the LMM's capital commitment; efforts expended as LMM; 
activity level of the options issue when the LMM assumed responsibility 
for the Book function; and other relevant factors. The Exchange intends 
to develop a procedure for determining ``net Book revenues'' and 
specific guidelines for the Options Appointment Committee to follow in 
determining the

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amount of net Book revenues, if any, to be awarded.
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    \10\ In Amendment No. 2, the Exchange is making a technical 
correction to the proposal by changing the cross reference in 
proposed Rule 6.82(h)(1)(e) from (f)(2) to (f)(1). This change is 
being made to reflect a change in another filing, and accordingly, 
this change to the filing is not substantive. See Amendment No. 2, 
supra note 6. See also Securities Exchange Act Release No. 37780, 
(October 3, 1996) (approving changes to the LMM Program).
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    The proposal specifies that LMMs who perform the function of an OBO 
pursuant to PSE Rule 6.82(h) shall maintain ``minimum net capital,'' as 
provided in Rule 15c3-1 under the Act,\11\ and also shall maintain a 
cash or liquid asset position of at least $500,000, plus $25,000 for 
each options issue over five issues for which they perform the function 
of an OBO.
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    \11\ 17 CFR 240.15c3-1
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    The Exchange believes that the proposal is consistent with Section 
6(b) of the Act, in general, and Section 6(b)(5), in particular, in 
that it is designed to facilitate transactions in securities, to 
promote just and equitable principles of trade, and to protect 
investors and the public interest.

III. Discussion

    PSE Rule 6.82 (``LMM Rule'') sets forth the basic rules and 
procedures applicable to the LMM Program. The Commission notes that the 
LMM Program was adopted in January 1990 as a pilot program.\12\ The 
Commission recently approved changes to the LMM Program that added 
several new substantive provisions to the LMM Rule and clarified and 
streamlined its existing provisions.\13\ In addition, the pilot LMM 
Program recently was extended to September 30, 1997.\14\ The Exchange 
is now proposing to establish a pilot program whereby LMMs will assume 
operational responsibility for the Book in a limited number of options 
issues.
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    \12\ See Securities Exchange Act Release No. 27631 (January 17, 
1990), 55 FR 2462.
    \13\ Securities Exchange Act Release No. 37780, supra note 10.
    \14\ See Securities Exchange Act Release No. 37767 (September 
30, 1996).
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    After careful consideration, the Commission finds that the 
Exchange's proposal to create a limited pilot program is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange in that the 
proposal is consistent with Section 6(b) of the Act, in general, and 
Section 6(b)(5), in particular, in that it is designed to facilitate 
transactions in securities, to promote just and equitable principles of 
trade, and to protect investors and the public interest. Giving LMMs 
greater control over their operations on the Exchange floor may 
continue to enhance the PSE's LMM Program, thereby improving the market 
for listed options on the Exchange. The Book pilot program is approved 
for a one year period, to expire on October 31, 1997, unless extended 
or permanently approved.
    The Commission finds in particular that the program will be 
implemented on a limited basis involving no more than three LMMs and no 
more than forty options symbols in total during a one-year pilot phase. 
The Commission finds the selection criteria for LMMs to participate in 
this limited pilot to be appropriate. The Commission finds consistent 
with the Act the requirement that any LMMs who perform the function of 
an OBO will be required to maintain minimum net capital pursuant to 
Rule 15c3-1 under the Act, as well as a cash or liquid asset position 
of at least $500,000, plus $25,000 for each options issue over five 
issues for which they perform the function of an OBO.\15\ The 
Commission finds appropriate that no market maker cooperatives will be 
permitted to participate in the pilot.\16\
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    \15\ Proposed PSE Rule 6.82, Commentary .06.
    \16\ Amendment No. 1. supra note 4.
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    The Commission believes that the pilot contains adequate safeguards 
to permit proper Exchange oversight of the LMMs managing the Book 
function. Specifically, the Commission finds appropriate that LMMs will 
be designated as OBOs and perform OBO functions pursuant to Rules 6.51 
through 6.59.\17\ These functions include the OBO's duty to assist in 
the maintenance of a fair, orderly, and competitive market.\18\ LMMs 
running the Book will be required to report to an Options Floor 
Official any unusual trading activity, transactions, or price changes, 
or other unusual market conditions or circumstances that are 
detrimental to the maintenance of a fair, orderly, competitive 
market.\19\ LMMs also will be required to disclose to members, upon 
request, the price and number of contracts which are bid below or that 
are offered above the Book information displayed pursuant to Rule 
6.55.\20\ The Commission also notes that the proposal incorporates the 
requirement that LMMs perform all market maker obligations provided in 
Rules 6.35 through 6.40 and 6.82(c).\21\
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    \17\ See Proposed PSE Rule 6.82(h)(1)(a).
    \18\ See PSE Rule 6.53.
    \19\ See PSE Rule 6.54.
    \20\ See PSE Rule 6.57.
    \21\ Proposed PSE Rule 6.82(h)(2)(a).
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    The Commission finds consistent with the Act that the proposal 
places additional obligations on LMMs, and provides for their support 
by the Exchange. The proposal includes a provision subjecting an LMM's 
resolution of a trading dispute to the review of two floor officials 
upon the request of any party to such dispute.\22\ The proposal also 
requires the PSE, for a reasonable fee, to make available Exchange 
personnel to assist LMMs in their OBO functions, though if the pilot is 
permanently approved, LMMs may be responsible for hiring and 
maintaining their own employees. The Commission notes that employees 
working in the Book operation, whether employed by an LMM or the 
Exchange, will be subject to all rules, policies, and procedures 
established by the Exchange. Finally, the Commission finds that the LMM 
Rule contains adequate provisions to permit the Exchange to reassign 
one or more options issues in the event that an LMM has not performed 
its duties satisfactorily.\23\
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    \22\ Proposed PSE Rule 6.82(h)(1)(c).
    \23\ See PSE Rule 6.82(f).
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    The Commission finds appropriate the provision of the proposal 
permitting an LMM to receive a proportionate share of net Book revenues 
for a limited time, in the event that an options issue is reallocated 
to the market maker system.\24\ The Commission finds that it is 
appropriate for the Exchange to have the discretion to determine what 
compensation, if any, an LMM should receive in the event of 
reallocation of an options issue.
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    \24\ Proposed PSE Rule 6.82(h)(1)(e).
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    The Commission notes that, pursuant to recent amendments to the LMM 
Rule, LMMs will be evaluated by the Options Allocation Committee at 
least semiannually.\25\ Before the Book pilot program can be approved 
on a permanent basis, or further extended, however, the Exchange must 
provide the Commission, within 6 months prior to its expiration, with a 
report on the operation of the Book pilot program. Specifically, the 
PSE must submit an updated pilot program report by April 1997 that 
addresses: (1) Whether there have been any complaints regarding the 
operation of the pilot; (2) whether the PSE has taken any disciplinary 
or performance action against any member due to the operation of the 
pilot; (3) whether the PSE has reassigned any options issues traded 
pursuant to the pilot; and (4) the impact of the pilot on the bid/ask 
spreads, depth and continuity in PSE options markets.
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    \25\ See PSE Rule 6.82(e)(4) and Securities Exchange Act Release 
No. 37780, supra note 10.
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    The Committee finds good cause for approving Amendment No. 2 prior 
to the thirtieth day after the date of the publication of notice of 
filing thereof in the Federal Register because Amendment No. 2 does not 
change the substance of the proposal, rather, it clarifies the purpose 
for the proposal and makes a technical correction to the text of the 
proposed rule. In addition,

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the PSE's proposal was published in the Federal Register for the full 
21 day comment period without any comments being received by the 
Commission.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 2. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, 
D.C. 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. Sec. 552, will be available for inspection and 
copying in the Commission's Public Reference Section, 450 Fifth Street, 
N.W., Washington, D.C. 20549. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
PSE. All submissions should refer to File No. SR-PSE-96-09 and should 
be submitted by November 8, 1996.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\26\ that the proposed rule change (File No. SR-PSE-96-09), as 
amended, is approved through October 31, 1997.

    \26\ 15 U.S.C. 78s(b)(2) (1988).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\27\
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    \27\ 17 CFR 200.3--3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-26783 Filed 10-17-96; 8:45 am]
BILLING CODE 8010-01-M