[Federal Register Volume 64, Number 2 (Tuesday, January 5, 1999)]
[Notices]
[Pages 549-553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-75]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-40835; File No. SR-NASD-98-85]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment No. 1 to the Proposed Rule Change by the National 
Association of Securities Dealers, Inc. to Establish the Nasdaq 
Application of the OptiMark System

December 28, 1998.
    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 November 13, 1998, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association''), through its wholly-owned 
subsidiary, the Nasdaq Stock Market, Inc. (``Nasdaq'') filed with the 
Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the NASD. On December 11, 1998, the 
Association filed Amendment No. 1 to the proposed rule change.\3\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Andrew S. Margolin, Assistant General 
Counsel, Nasdaq to Katherine A. England, Assistant Director, 
Division of Market Regulation (``Division''), Commission, dated 
December 11, 1998 (``Amendment No. 1''). In Amendment No. 1, the 
Association clarifies the definition of the term ``Designated 
Broker'' to indicate that, to be considered a Designated Broker, a 
broker must have an effective clearing arrangement in place with a 
member of a clearing agency registered pursuant to the Act.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    Nasdaq is proposing to establish the Nasdaq Application, a new 
electronic trading system based on the innovative information 
processing technology provided by OptiMark Technologies, Inc., together 
with its wholly-owned subsidiary, OptiMark Services, Inc. 
(``OptiMark''),\4\ as a facility of Nasdaq. In addition, the 
Association is proposing to adopt NASD Rules 4991-4998 and amend NASD 
Rule 11890 to govern the use of the Nasdaq Application by its members 
and non-member Users.
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    \4\ OptiMark Technologies, Inc. is a computer technology firm 
that has developed certain patented technology referred to as 
``OptiMarkTM.'' The Nasdaq Application is one of several 
different trading services based on this technology that may be 
available for other markets in the future. One such service already 
has received SEC approval for operation on the Pacific Exchange. See 
Securities Exchange Act Release No. 39086 (September 17, 1997), 62 
FR 50036 (September 24, 1997). While the OptiMark technology is 
virtually identical to that which has been approved for the PCX 
Application, the proposed Nasdaq Application and related rules 
adapts and uses the OptiMark technology within the existing Nasdaq 
market structure.
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, Nasdaq 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 IV below. Nasdaq has prepared summaries, set forth in Sections A, 
B, and C below, of the most significant aspects of such statements.

[[Page 550]]

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

1. Purpose

Summary of Nasdaq's Application of the OptiMark System

    Nasdaq proposes to establish rules for a new Nasdaq facility called 
the Nasdaq Application (``Application'') based on the information 
processing technology provided by OptiMark Technologies, Inc., together 
with its wholly-owned subsidiary, OptiMark. The Application is a 
computerized, screen-based trading service intended for use by NASD 
members and other non-member users, as described below. The Application 
provides a computerized mechanism designed to satisfy the trading 
desires of all market participants, including retail and institutional 
investors as well as broker-dealers. The Application enables these 
participants to anonymously represent their trading interest across a 
full spectrum of prices and sizes, and performs a computer-based 
optimal search and match for liquidity in securities listed on The 
Nasdaq Stock Market.\5\ The Application is a new trading service that 
will be available to market participants in addition to existing Nasdaq 
trading systems and shall be operated as a new, additional facility of 
the Nasdaq Stock Market. Because the Nasdaq Application of the OptiMark 
System is to be operated as a Nasdaq facility, rules relating to its 
operation are subject to SEC review under Section 19(b) of the Act.\6\
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    \5\ The Application would be available for securities listed on 
Nasdaq, including securities listed on the Nasdaq SmallCap market. 
The Application would not be available to securities not listed on 
Nasdaq, such as those which may be quoted in the OTC Bulletin Board.
    \6\ 15 U.S.C. 78s(b).
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    Nasdaq represents that integrating OptiMark's technology into 
Nasdaq will continue Nasdaq's effort to improve opportunities for 
investors to receive the best available prices in the marketplace and 
reduce trading costs. Nasdaq states that the proposed Application would 
match all trading interest on a level playing field and provide an 
opportunity for individual investors' Profiles \7\ to be aggregated and 
interact directly with institutional interest on an objective and 
anonymous basis, thereby benefiting the small investor and facilitating 
retail order flow. Nasdaq further notes that the proposed Application 
would provide an alternative method for institutional investors to 
transact with minimal market impact and to obtain price improvement. 
According to Nasdaq, the proposed Application would benefit market 
makers by providing an additional option to manage inventory risk 
through fast and efficient executions. Nasdaq believes issuers would 
also benefit through enhanced liquidity and flexibility available for 
their shareholders. The proposed Application, Nasdaq states, has the 
potential to increase liquidity, reduce volatility, and greatly enhance 
the fairness and efficiency of the Nasdaq market overall.
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    \7\ For a description of a Profile, see Section II. Entry of 
Profiles and Incorporation of the Nasdaq Quote Montage.
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Application as a Facility of the Nasdaq Stock Market

    The Application will be maintained as a facility of The Nasdaq 
Stock Market, supplementing the existing trading and execution services 
provided by Nasdaq to all NASD members and their customers. As 
mentioned above, the Application provides another means for NASD 
members and their customers to obtain executions of trading interest in 
Nasdaq securities. As a facility of the Nasdaq Stock Market, the 
Application allows NASD members to access the new trading facility 
through the Nasdaq Workstation and the Nasdaq network that connects 
those workstations. Nasdaq will provide a Graphical User Interface 
(``GUI'') that permits NASD members that are subscribers to Nasdaq 
Workstation Service and have signed appropriate User Agreements to 
transmit Profiles from their Workstations to the OptiMark Matching 
Module that will conduct Cycles \8\ on a periodic basis. The facility 
also allows the use of other networks and access devices to transmit 
Profiles to the OptiMark Matching Module, as long as such access is 
properly authorized.
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    \8\ For a description of a Cycle, see Section II. Central 
Processing Cycles--OptiMark's Matching Algorithm.
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    The Application, as a facility of the Nasdaq Stock Market, shall be 
subject to NASD Rules and oversight by NASD Regulation. Information 
regarding all Profiles submitted to the Application, whether executed 
or not, is subject to review by NASD Regulation and the SEC, and may be 
used for the purpose of ensuring that any activity conducted through 
the Application is consistent with NASD Rules and the federal 
securities laws. Thus, although the Profiles entered into the facility 
may be anonymous with respect to other users and the operators of the 
system itself, regulatory authorities have full access to all 
information entered.

Access to the Application

    The Application is available to any NASD member that chooses to 
become a User and complies with all applicable rules. A User is a 
subscriber who has entered into an agreement with OptiMark Services, 
Inc. to access the Application. In addition, a non-member may become a 
User, provided it is authorized in advance by one or more NASD members 
who are Designated Brokers.\9\ A non-member can be authorized by one or 
more NASD members in accordance with a Supplemental Account Agreement 
and Designated Broker Consent Agreement. The Supplemental Account 
Agreement, between the Designated Broker and the non-member, enables 
Profiles of the non-member to be executed, cleared, and settled through 
the use of the Designated Broker's name within the Application. The 
Designated Broker Consent Agreement, between the Designated Broker and 
OptiMark Services, Inc., provides the Designated Broker's authorization 
for Profiles of a non-member User to be routed, executed, and reported 
in the Designated Broker's name. These agreements include any 
applicable credit limits imposed by the Designated Broker on the non-
member User.\10\ The Designated Broker is responsible for all of its 
non-member Users' Orders and resulting transactions.
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    \9\ The term Designated Broker is defined in proposed Rule 
4991(c) as ``an NASD member who has been designated by a non-member 
User to execute, clear, and settle transactions resulting from the 
Application.'' Rule 4991(c) further provides that ``[p]articipation 
as a Designated Broker shall be conditioned upon the Designated 
Broker's membership in, or maintenance of, an effective clearing 
arrangement with a member of a clearing agency registered pursuant 
to the Act.'' See Amendment No. 1, supra note 3.
    \10\ A non-member User's credit limits, as they may be 
established from time to time by a Designated Broker (or its 
clearing broker), will be programmed into the OptiMark System. The 
Designated Broker will be alerted as its potential exposure to its 
customers, individually or in the aggregate, approaches the 
established credit limits (``Alarm Threshold'') or reaches the limit 
at which the Designated Broker will no longer permit a customer to 
submit Profiles (``Trading Limit'').
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    Users that are NASD members may access the Application from the 
Nasdaq Workstation through the Nasdaq-provided network(s). Non-member 
Users sponsored by NASD members (subject to the applicable agreements 
referenced above), as well as any interested NASD members, may obtain 
access to the Application from the telecommunications access services 
through the OptiMark-provided network(s), which may include appropriate 
access provided through third parties.

[[Page 551]]

Entry of Profiles and Incorporation of the Nasdaq Quote Montage

    Users would access the proposed Application by submitting 
customized expressions of trading interest called Profiles. Profiles 
enable Users to visually depict complex trading strategies by not only 
reflecting an investor's willingness to trade at a variety of prices 
and sizes, but also enabling an investor to add a third dimension to 
its trading strategy. This third dimension is the level of 
satisfaction, on a sliding scale, of trading at a given price and size. 
For example, an investor may be 100% satisfied to buy 100,000 shares at 
a price up to $1.00 above the current market price, but only 50% 
satisfied to buy that number of shares at a price $1.50 above it and 
not satisfied at all to pay more than $2.00 above it. The satisfaction 
levels are expressed as a number between zero and one for each 
coordinate on a price/size grid.
    These User-defined Profiles, which are represented by graphical 
user interface software, are not disclosed to other Users or market 
participants, including any Designated Broker through whom a non-member 
User is authorized to submit Profiles and obtain executions.\11\ The 
Profiles are received and logged in by the OptiMark Matching Module for 
the purpose of obtaining the optimal outcome of matching buyers and 
sellers at the best prices possible.
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    \11\ Profiles entered into the Application are contingent 
expressions of interest to trade at a range of prices and sizes.
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    In addition to Profiles submitted directly by Users, the Nasdaq 
Application will include certain system-generated Profiles known as the 
``Nasdaq Quote Montage Profiles,'' which reflect the national best bid 
and offer quotes from Nasdaq Market Makers, electronic communications 
networks (``ECNs''), and UTP Exchange Plan Specialists as displayed in 
the Nasdaq Quote Montage at the time a matching Cycle begins (described 
more fully below). In this way, the expressions of interests of all 
Users are reflected in the Application, as are the publicly displayed 
quotes comprising the national best bid and offer.

Central Processing Cycles--OptiMark's Matching Algorithm

    At one or more times throughout the trading day, all Profiles 
(including the Nasdaq Quote Montage Profiles) will be centrally 
processed by the OptiMark Matching Module operated by OptiMark 
Services, Inc. to obtain the optimal matches among Users. The maximum 
frequency with which these ``Cycles'' may take place will be every 90 
seconds, with no Cycle taking place prior to 9:45 a.m. EST or after 
3:45 p.m. EST. The exact frequency of Cycles for any given Nasdaq 
security will be determined by Nasdaq, in consultation with OptiMark, 
based on the general characteristics of the security, the robustness of 
the associated Profile flow over a period, and the current level of 
interest expressed by Users.
    The OptiMark Matching Module employs a sophisticated computer 
algorithm that measures and ranks all relevant mutual satisfaction 
outcomes by matching individual coordinates from intersecting buy 
Profiles with those of sell Profiles for a particular stock. The 
OptiMark System matches these intersecting Profiles in accordance with 
the following eligibility restrictions and priority principles:
    1. Eligibility Restrictions--At commencement of a Cycle, each 
individual coordinate with a non-zero satisfaction value from all buy 
Profiles and all sell Profiles received by the OptiMark System in a 
given eligible security would be grouped into the Buy Profile Data Base 
or the Sell Profile Data Base, respectively. Each individual 
coordinate, no matter how small or large in the corresponding size, 
from either profile Data Base would be eligible to be matched with one 
or more coordinates from the other Profile Data Base and would result 
in one or more Orders,\12\ provided that:
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    \12\ The term Orders[s] means one or more order[s] generated 
from a Cycle at specific prices and sizes at which execution 
immediately may occur. Orders in Eligible Securities for execution 
shall be in round lots equal to or greater than 1,000 shares, except 
for Orders resulting from processing the Nasdaq Quote Montage 
Profiles which may be in any round lot size. Orders must be in price 
increments conforming to the requirements of Nasdaq trading system 
rules and system requirements applicable to all Orders executed in 
Nasdaq. Such Orders shall include the following information: (1) the 
stock ticker symbol; (2) a designation as ``buy,'' ``sell long,'' 
``sell short,'' or ``sell short exempt''; and (3) such other 
information as may be required by the Board of the Nasdaq Stock 
Market.
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    1.1.  no buy and see coordinates could be matched in violation of 
any applicable User instructions for the respective Profiles including: 
(a) the maximum quantity associated with the Profile; or (b) any 
boundary conditions restricting the aggregate number of shares that may 
be bought or sold at a particular price or size range; and
    1.2  no buy and sell coordinates could be matched at a price 
inferior to that of another coordinate with Standing (as defined below) 
that is eligible for matching. A buy (sell) coordinate has Standing if: 
(a) it has a satisfaction value of 1, and (b) all coordinates having 
the same price and a smaller size, down to and including the minimum 
trading increment (100 shares), are included in the associated Profile 
at a satisfaction value of 1. Also, each coordinate from a Nasdaq Quote 
Montage Profile would have Standing. Alternatively, no coordinate from 
a Profile containing any boundary conditions restricting the aggregate 
number of shares that may be bought or sold at a particular size range 
shall have Standing. For example, no coordinate from a Profile 
submitted by a User on an ``all-or-none'' basis would have Standing.
    2. Priority Principles--The methods for considering potential 
matches between buy and sell coordinates in the Profile Data Bases 
would vary, depending on whether both coordinates represent 
satisfaction values of 1 or less than 1. As a result, these would be 
two separate stages of a Cycle:
    2.1  Aggregation Stage. The OptiMark System initially would process 
eligible buy and sell coordinates in the Profile Data Bases, each with 
the full satisfaction value of 1 only. At this stage of calculation 
(``Aggregation Stage''), smaller-sized coordinates may be aggregated to 
build sufficient size to be matched with larger-sized coordinates to 
generate Orders in accordance with the following rules of priority, 
subject to the applicable eligibility restrictions:
    (A) Price aggressiveness. A coordinate with a more aggressive price 
(i.e., a higher price for a buy coordinate and a lower price for a sell 
coordinate) would have priority over coordinates with less aggressive 
prices.
    (B) Standing. Among the coordinates with the same price, a 
coordinate with Standing would have priority over all other coordinates 
without Standing.
    (C) Time of entry. Among the coordinates with the same price and 
Standing, the time of the entry of the associated Profile would 
determine relative priority, with earlier submissions having priority. 
All Profiles submitted by Users would be appropriately time-stamped 
with a unique serial number when received by the OptiMark System. 
Because each Nasdaq Quote Montage Profile would be generated from the 
most current quotation prevailing at the time of commencement of a 
Cycle, the effective time of entry of a Nasdaq Quote Montage Profile 
would be later than that of any other Profile submitted by a User.
    (d) Size: Among the coordinates with the same price, Standing and 
time of entry, priority would be determined by size, with larger sizes 
having higher priority.
    2.2.  Accumulation Stage. Upon completion of the Aggregation Stage, 
the

[[Page 552]]

OptiMark System would consider potential matches between eligible buy 
coordinates and sell coordinates in the Profile Data Bases where one or 
both parties have a satisfaction value of less than 1 but greater than 
0. At this stage of calculation (``Accumulation Stage''), only those 
buy and sell coordinates with the same associated price an size would 
be matched to generate Orders in accordance with the following rules of 
priority, subject to the applicable eligibility restrictions.
    (A) Mutual satisfaction. A potential match with a higher mutual 
satisfaction value (the product of the two satisfaction values) would 
take precedence over other potential matches with lower mutual 
satisfaction values.
    (B) Time of entry (based on the earlier Profile). Among the 
potential matches with the same mutual satisfaction, the match with the 
earlier time of entry, as determined initially by the effective time of 
entry assigned to the earlier of the buy and sell Profiles involved 
(the ``earlier Profile''), would have priority over other potential 
matches.
    (C) Size. Among the potential matches with the same mutual 
satisfaction and time of entry for the earlier Profile, priority would 
be given to the one with a larger size.
    (D) Time of entry (based on the later Profile). Among the potential 
matches with the same mutual satisfaction, time of entry (for the 
earlier Profile), and size, the match with the earlier time of entry, 
as determined this time by the effective time of entry assigned to the 
later of the buy and sell Profiles involved (the ``later Profile''), 
would have priority over other potential matches.
    (E) Price assignment. In regard to all remaining ties between 
potential matches, which would consist solely of the coordinates for a 
single pair of buy and sell Profiles from two Users that may be matched 
with the same mutual satisfaction, time of entry and size, but at 
different prices, priority would be given to the match at a price more 
favorable to the User whose Profile has the earlier time of entry. For 
example, among the last potential matches remaining at the price of 10 
and at 10\1/8\, if the sell Profile is the earlier Profile, then the 
match would take place at the price of 10\1/8\. Two or more Profiles 
that are entered into the OptiMark System representing the same number 
of shares may result in executions at differing prices depending on the 
other information and conditions entered into the OptiMark System.

Generation of Orders Resulting From OptiMark Cycles

    Any Orders generated from a Cycle at specific prices and sizes that 
involve the matching of any two User-submitted Profiles, in whole or in 
part, will be immediately executed. The trade between the matched Users 
will be transmitted automatically through Nasdaq's Automated 
Confirmation Transaction Service (``ACT'') for trade reporting and 
clearing purposes (discussed more fully below).
    Orders generated from a Cycle at specific prices and sizes that 
involve the matching of any Nasdaq Quote Montage Profile, in whole or 
in part, will be immediately delivered to the relevant participant 
through Nasdaq's existing delivery and execution systems, which will be 
adapted for this purpose. Currently, this means Nasdaq's SOES and 
SelectNet Systems. Nasdaq has already filed a proposed rule change with 
the SEC that would, among other things, integrate SOES and SelectNet 
into one trading system.\13\ To facilitate the delivery and execution 
of any Orders resulting from the Nasdaq Quote Montage Profiles, Nasdaq 
intends to employ these evolving trading systems in the form that they 
exist in at the time the Application begins operations. Any Order 
transmitted through these means to the participant's quote will be 
executed, unless the quote has been executed or canceled, in whole or 
in part, prior to delivery from the Application. If the quotation 
against which the contra Profile was matched has been executed or 
canceled, in whole or in part prior to delivery from the Application, 
the Orders generated by the Application shall be canceled without 
imposing any liability against the displayed quotation. In the case of 
any Orders delivered from the Application to any UTP Plan Exchange 
Specialist, those executed by the Exchange shall be considered executed 
and reported on such Exchange.\14\
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    \13\ See Securities Exchange Act Release No. 39718 (March 4, 
1998) 63 FR 12124 (March 12, 1998).
    \14\ See proposed NASD Rule 4994(a), Order Execution, Reporting 
and Clearing.
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Clearance and Settlement

    As indicated above, transactions that result from matches through 
the Application will be cleared using Nasdaq's post-execution service, 
ACT. Accordingly, final locked-in trades will be forwarded to the 
National Securities Clearing Corporation (``NSCC'') in the ordinary 
course, and will clear and settle regular way through NSCC as would any 
other Nasdaq transaction. All Users will receive a report of any 
execution resulting from processing the Profiles submitted by them 
(including any execution resulting against a displayed quotation) as 
soon as possible after the executive takes place. Non-member Users will 
have the option of re-allocating for clearing purposes all or a portion 
of any execution to another broker by the end of the trading day. A 
Designated Broker generally will be notified promptly after the close 
of the trading day to the extent it has been allocated for clearing 
purposes any transaction resulting from a Profile submitted by a non-
member User sponsored by that Designated Broker.
    In the comparison, clearance and settlement process, although the 
specific identify of the counterparties to a particular trade will be 
temporarily masked until 4:30 p.m. of the trade day, the Designated 
Broker that agreed to sponsor a User in the Application is fully 
responsible for the clearance and settlement of that trade. Nasdaq and 
the operator of the Application are not responsible for either the User 
or another Designated Broker failing to pay for or to deliver the 
securities traded through this facility. Further, the NASD, Nasdaq and 
any other NASD subsidiary or affiliate, and the operator of the 
OptiMark Matching Module are not deemed parties to or participants in, 
as principal or as agent, any trade that may occur through the 
Application. In proposed NASD Rule 4998(a), the Association states that 
neither Nasdaq, the NASD, nor any affiliate, operator, licensor, or 
administrator of the OptiMark Matching Module may be held responsible 
for any damages arising from the use of the Application. In addition, 
proposed NASD Rule 4998(b) states that neither Nasdaq, the NASD, nor 
any affiliate, operator, licensor, or administrator of the Application 
makes any express or implied warranties with respect to any results 
that a User or Designated Broker using the Application may expect. 
Paragraph (b) of proposed NASD Rule 4994 clearly states that 
responsibility for clearance and settlement remains with the Designated 
Broker. The User and Supplemental Account Agreements that each party 
must sign prior to entering a Profile into the Application likewise 
make clear that the responsibility for clearance and settlement lies 
with the Designated Broker, and that the Designated Broker must 
evaluate the ability of Users to settle trades when it authorizes a 
User to submit Profiles under its sponsorship.
    Finally, trades executed through the Application will not be 
subject to NASD Rule 11890, regarding clearly erroneous trades. Due to 
the complexity of Profile

[[Page 553]]

matches, it would be very difficult to allow a single party to request 
that its part of a matched set of Profiles be withdrawn from a match 
after the fact. Attempting to delete a Profile that is part of a match 
could require an entire match to be re-constructed and create a chain 
reaction of broken matches. The Application will require parties 
entering Profiles to agree that once matched, their Profiles cannot be 
deemed to be erroneously entered. Consequently, Nasdaq seeks to amend 
Rule 11890 to make clear that the Rule cannot be used by any 
Application User as a means to break a trade resulting from an OptiMark 
match.\15\
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    \15\ Telephone conversation between Eugene Lopez, Vice 
President, Trading and Market Services, Nasdaq and David Sieradzki, 
Special Counsel, Division, Commission, on December 22, 1998.
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Trade Reporting, Short Sales, and Halts

    Like other executive services provided by Nasdaq, a public trade 
report will be immediately disseminated by Nasdaq for any executions 
resulting from the Nasdaq Application. These trade reports will be 
reported on behalf of the sell side party to the trade. The report for 
any resulting transaction will not be distinguished on the public tape 
from any other trade reported through Nasdaq. SEC Transaction Fees 
(Section 31 Fees) \16\ apply and will be charged against the seller(s).
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    \16\ 15 U.S.C. 78ee.
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    With respect to the NASD' short sale rule, Rule 3350, which applies 
to Nasdaq National Market securities, the OptiMark Match Module will be 
programmed to capture the bid price direction at the commencement of 
every Cycle, as well as the short sale status of every Profile entered 
(i.e., whether it is marked short, and whether or not it is exempt). It 
will exclude any Profile that could result in a match and execution of 
any transaction in a Nasdaq National Market security that would be 
prohibited by the short sale rule.\17\
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    \17\ See proposed NASD Rule 4995, Short Sale In the Nasdaq 
Application.
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    Nasdaq will suspend within the Application any activity in any 
security that is subject to a trading halt or suspension pursuant to 
NASD or SEC rules, Nasdaq Market Emergency Rules, or if deemed 
necessary for the protection of investors or to preserve system 
capacity and integrity.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 15A(b)(6)\18\ and Section 11A\19\ of the Act. 
Section 15A(b)(6) requires that the rules of a registered national 
securities association be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principals of trade, to foster cooperation and coordination with 
persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest. Section 15A(b)(6) further 
requires that such rules not be designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
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    \18\ 15 U.S.C. 78o-3(b)(6).
    \19\ 15 U.S.C. 78k-1.
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    Section 11A(a)(1) sets forth findings of Congress that new data 
processing and communications techniques create the opportunity for 
more efficient and effective market operations. Section 11A(a)(1)(C) 
states that it is in the public interest and appropriate for the 
protection of investors and the maintenance of fair and orderly markets 
to assure: (1) economically efficient execution of securities 
transactions; (2) fair competition among brokers and dealers; (3) the 
availability to brokers, dealers, and investors of information with 
respect to securities; (4) the practicability of brokers executing 
investors' orders in the best market; and (5) an opportunity for 
investors orders to be executed without the participation of a dealer.
    The Application takes advantage of new data processing and 
communications techniques to create the opportunity for a more 
efficient market in the trading of Nasdaq securities. It will enhance 
opportunities for investors by providing an alternative method to 
receive the best available price in the marketplace, obtain price 
improvement, and reduce trading costs.

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

    Nasdaq does not believe that the proposed rule change will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended.

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

    Written comments were neither solicited nor received.

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

    Within 35 days 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 self-regulatory organization consents, the Commission will:
    (A) by order approve the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposal is 
consistent with the Act. 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 at 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-98-85 and should be 
submitted by January 26, 1999.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-75 Filed 1-4-99; 8:45 am]
BILLING CODE 8010-01-M