[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Notices]
[Pages 52780-52782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26276]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-40485; File No. SR-NASD-98-26]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval to Amendment No. 5 to a Proposed Rule 
Change by the National Association of Securities Dealers, Inc. to 
Institute, on a Pilot Basis, New Primary Nasdaq Market Maker Standards 
for Nasdaq National Market Securities

September 25, 1998.

I. Introduction

    On March 19, 1998, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association''), through its wholly-owned 
subsidiary, The Nasdaq Stock Market, Inc. (``Nasdaq''), submitted to 
the Securities and Exchange Commission (``SEC'' or ``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'') 1 and Rule 19b-4 thereunder,2 
a proposed rule change to: (a) implement, on a pilot basis, new Primary 
Nasdaq Market Maker (``PMM'') standards for all Nasdaq National Market 
(``NNM'') securities; (b) extend the NASD's Short Sale Rule pilot until 
November 1, 1998; and (c) extend the suspension of existing PMM 
standards until May 1, 1998. On March 30, 1998, the Commission issued 
notice of the filing and approved, on an accelerated basis, the 
portions of the filing extending the NASD's Short Sale Rule pilot and 
the suspension of existing PMM standards.3 The suspension of 
existing PMM standards was subsequently extended until October, 
1998.4
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Exchange Act Release No. 39819 (March 30, 1998) 63 FR 16841 
(April 6, 1998).
    \4\ See Exchange Act Release No. 40140 (June 26, 1998) 63 FR 
36464 (July 6, 1998).
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    On September 25, 1998, Nasdaq proposed to (1) continue to suspend 
the current PMM standards until March 31, 1999, and (2) extend the 
NASD's Short

[[Page 52781]]

Sale Rule pilot (including extending the amendment to the definition of 
``legal'' short sale) until March 31, 1999.5
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    \5\ See letter from Robert E. Aber, Senior Vice President and 
General Counsel, Nasdaq, to Richard Strasser, Assistant Director, 
Division, SEC, dated September 25, 1998.
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Background

    Presently, NASD Rule 4612 provides that a member registered as a 
Nasdaq market maker pursuant to NASD Rule 4611 may be deemed a PMM if 
that member meets certain threshold standards. The implementation of 
the SEC Order Handling Rules and what some perceive as a concurrent 
move toward a more order-driven, rather than a quote-driven, market 
raised questions about the continued relevance of those PMM standards. 
As a result, such standards were suspended beginning in early 
1997.6 Currently, all market makers are designated as PMMs.
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    \6\ See Exchange Act Release No. 38294 (February 14, 1997) 62 FR 
8289 (February 24, 1997) (approving temporary suspension of PMM 
standards); Exchange Act Release No. 39198 (October 3, 1997) 62 FR 
53365 (October 14, 1997) (extending suspension through April 1, 
1998); Exchange Act Release No. 39819 (March 30, 1998) 63 FR 16841 
(April 6, 1998) (extending suspension through May 1, 1998); Exchange 
Act Release No. 39936 (April 30, 1998) 63 FR 25253 (May 7, 1998) 
(extending suspension through July 1, 1998); Exchange Act Release 
No. 40140 (June 26, 1998) 63 FR 36464 (July 6, 1998) (extending 
suspension through October 1, 1998).
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    Since February 1997, Nasdaq has worked to develop PMM standards 
that are more meaningful in what may be an increasingly order-driven 
environment and that better identify firms engaged in responsible 
market making activities deserving of the benefits associated with 
being a PMM, such as being exempt from NASD Rule 3350, the NASD's Short 
Sale Rule. The NASD now proposes to extend the current suspension of 
the existing PMM standards.
    In light of a substantial number of comments on the proposed new 
PMM standards, Nasdaq staff in August 1998 convened a subcommittee to 
develop new standards. Nasdaq expects that the subcommittee will 
complete its task and that new PMM standards will be submitted to the 
appropriate Nasdaq and NASD committees and boards for approval shortly. 
Nasdaq also expects that it will file an amendment to SR-NASD-98-26 to 
incorporate the new PMM standards that currently are being developed by 
the subcommittee, or in the alternative, that it will withdraw SR-NASD-
98-26 and will submit the new PMM standards as a new filing.
    For the reasons discussed below, the Commission has determined to 
grant accelerated approval of Nasdaq's request, in Amendment No. 5, to 
continue to suspend the current PMM standards and to extend the NASD's 
Short Sale Rule Pilot until March 31, 1999.

II. Proposed Rule Change

    In the current amendment, Nasdaq is proposing to extend the Short 
Sale Rule pilot (including extending the amendment to the definition of 
``legal'' short sale) and the suspension of existing PMM standards to 
allow more time to refine the PMM standards.
* * * * * * *
The proposed rule language, as amended, follows. Additions are 
italicized; deletions are bracketed.

NASD Rule 3350

(a)-(k) No Changes

    (l) This Rule shall be in effect until [November 1, 1998] March 31, 
1999.
* * * * * * *

III. Discussion

    After careful consideration, the Commission has concluded, for the 
reasons set forth below, that the extension of the Short Sale Rule 
pilot and the suspension of the existing PMM standards until March 31, 
1999, is consistent with the requirements of the Exchange Act and the 
rules and regulations thereunder. In particular, the extension is 
consistent with Section 15A(b)(6) \7\ of the Exchange Act. Section 
15A(b)(6) requires that the NASD's rules be designed, among other 
things, to remove impediments to and perfect the mechanism of a free 
and open market and a national market system and to promote just and 
equitable principles of trade. The Commission believes that 
continuation of the Short Sale Rule pilot and the continued suspension 
of the current PMM standards will maintain the status quo while the 
Commission and the NASD review the operation of revised PMM standards. 
Because the Commission's ultimate stance on the Short Sale Rule may be 
affected, in part, by the operation of revised PMM standards, it is 
reasonable to keep the Short Sale Rule pilot in place while work 
continues on the PMM standards. Furthermore, it is judicious, in the 
short term, to avoid reintroducing the previous PMM standards prior to 
the implementation of a new PPM pilot.
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    \7\ 15 U.S.C. 78o-3(b)(6).
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    In finding that the suspension of the existing PMM standards is 
consistent with the Exchange Act, the Commission reserves judgment on 
the merits of the NASD's Short Sale Rule, any market maker exemptions 
to that rule, and the proposed new PMM standards. The Commission 
recognizes that the Short Sale Rule already has generated significant 
public comment. Such commentary, along with any further comment on the 
interaction of the Short Sale Rule with the proposed new PMM standards, 
will help guide the Commission's evaluation of the Short Sale Rule and 
new PMM standards. During the PMM pilot period, the Commission 
anticipates that the NASD will continue to address the Commission's 
questions and concerns and provide the Commission staff with any 
relevant information about the practical effects and the operation of 
the revised PMM standards and possible interaction between those 
standards and the NASD's Short Sale Rule.
    The Commission finds good cause for approving the extension of the 
Short Sale Rule pilot (including extending the amendment to the 
definition of ``legal'' short sale) and the suspension of existing PMM 
standards prior to the 30th day after the date of publication of notice 
of the filing in the Federal Register. It could be disruptive to the 
Nasdaq market and confusing to market participants to reintroduce the 
previous PMM standards for a brief period prior to implementing a new 
PMM pilot.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning Amendment No. 5, including whether the proposed 
Amendment is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, N.W., 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 File No. 
SR-NASD-98-26 and should be submitted by October 22, 1998.

[[Page 52782]]

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\8\ that Amendment No. 5 to the proposed rule change, SR-
NASD-98-26, which extends the NASD Short Sale Rule pilot and the 
suspension of the current PMM standards to March 31, 1999, be and 
hereby is approved on an accelerated basis.\9\

    \8\ 15 U.S.C. 78s(b)(2).
    \9\ In approving Amendment No. 5, the Commission has considered 
its impact on efficiency, competition, and capital formation. 15 
U.S.C. 78c(f).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. 98-26276 Filed 9-30-98; 8:45 am]
BILLING CODE 8010-01-M