[Federal Register Volume 64, Number 87 (Thursday, May 6, 1999)]
[Notices]
[Pages 24430-24435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11361]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-41343; File No. SR-NASD-99-16]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the National Association of Securities Dealers, Inc. and 
Amendment No. 1 Thereto Relating to Agency Quotations and Access Fees

April 28, 1999.
    On April 15, 1999, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association''), through its

[[Page 24431]]

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 Nasdaq.\1\ On April 
22, 1999, the NASD amended the filing.\2\ The Commission is publishing 
this notice to solicit comments on the proposed rule change, as 
amended, from interested persons.
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    \1\ This proposal was filed pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act''), 15 U.S.C. 78s(b)(1), and 
Rule 19b-4, 17 CFR 240.19b-4, thereunder.
    \2\ See letter from Robert E. Aber, Senior Vice President and 
General Counsel, Office of the General Counsel, Nasdaq, to Richard 
Strasser, Assistant Director, Division of Market Regulation 
(``Division''), Commission, dated April 22, 1999 (``Amendment No. 
1''). In Amendment No. 1, the NASD made various technical and 
clarifying amendments which are reflected in the notice. Also in 
Amendment No. 1, the text of proposed NASD Rule 4615 and the 
accompanying explanatory text in the filing is amended to clarify 
that if the access fee that an ECN or market maker charges is 
greater than one minimum quotation increment, the market maker or 
ECN must round its bid down (or offer up) to the next minimum 
increment that is equal to or greater than the access fee. Finally, 
the NASD also explained that the instant proposed rule change is 
contingent upon the Commission's approval of its pending Agency 
Quote proposal (Exchange Act Release No. 41128 (March 2, 1999), 64 
FR 41128 (March 11, 1999) (File No. SR-NASD-99-09)).
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    Nasdaq is proposing to: (1) amend certain NASD quotation rules to 
remove any arguable prohibitions that could prevent market makers from 
charging a fee when their agency quote is accessed; and (2) require 
market makers and electronic communications networks (``ECNs'') to 
round their quotations to the next minimum quotation increment when the 
market maker or ECN charges another market participant a fee in excess 
of one-half of one cent to access its quote. Proposed new language is 
italicized; proposed deletions are in brackets.
* * * * *
3320. Offers at Stated Prices
    No member shall make an offer to buy from or sell to any person any 
security at a stated price unless such member is prepared to purchase 
or sell, as the case may be, at such price and under such conditions as 
are stated at the time of such offer to buy or sell. It shall be 
consistent with this rule for a Nasdaq market maker to charge a fee to 
a market participant that accesses the market maker's Agency Quote (as 
defined in NASD Rule 4613(b)) so long as the market maker meets all 
NASD requirements for displaying the Agency Quote.
IM-3320. Firmness of Quotations
    Members and persons associated with members in the over-the-counter 
market make trading decisions and set prices for customers upon the 
basis of telephone and wire quotations as well as quotations in the 
National Quotation Bureau sheets. In some instances a dealer's 
quotations, purportedly firm, are, in fact, so qualified upon further 
inquiry as to constitute ``backing away'' by the quoting dealer. 
Further, dealers who place quotations in the sheets have been found to 
be unwilling to make firm bids or offers upon inquiry in such a way as 
to pose a question as to the validity of the quotations originally 
inserted. Such ``backing away'' from quotations disrupts the normal 
operation of the over-the-counter market.
    Members, of course, change interdealer quotations constantly in the 
course of trading, but under normal circumstances where the member is 
making a ``firm trading market'' in any security, it is expected at 
least to buy or sell a normal unit of trading in the quoted stock at 
its then prevailing quotations unless clearly designated as not firm or 
firm for less than a normal unit of trading when supplied by the 
member. It should be realized, however, that at times contemporaneous 
transactions or substantial changes in inventory might well require 
dealers to quote a ``subject market'' temporarily.
    In order to insure the integrity of quotations, every member has an 
obligation to correctly identify the nature of its quotations when they 
are supplied to others. In addition, each member furnishing quotations 
must insure that it is adequately staffed to respond to inquiries 
during the normal business hours of such member.
    It shall be deemed conduct inconsistent with high standards of 
commercial honor and just and equitable principles of trade if a member 
fails to fulfill its obligations as outlined above. It shall not be a 
violation of this rule or be deemed conduct inconsistent with high 
standards of commercial honor and just and equitable principles of 
trade if a Nasdaq market maker charges a fee for accessing its Agency 
Quote so long as the market maker meets all NASD requirements for 
displaying the Agency Quote.
Rule 4613. Character of Quotations
    (a)-(b) No Change.\3\
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    \3\ In pending File No. SR-NASD-99-11, Nasdaq proposed 
amendments to NASD Rule 4613(a) which would functionally integrate 
Nasdaq's SOES and SelectNet system. See Exchange Act Release No. 
41296 (April 15, 1999), 64 FR 19844 (April 22, 1999).
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    (c) Firm Quotations.
    A market maker that receives an offer to buy or sell from another 
member of the Association shall execute a transaction for at least a 
normal unit of trading at its displayed quotations as disseminated in 
The Nasdaq Stock Market at the time of receipt of any such offer. If a 
market maker displays a quotation for a size greater than a normal unit 
of trading, it shall, upon receipt of an offer to buy or sell from 
another member of the Association, execute a transaction at least at 
the size displayed. It shall be consistent with this rule for a Nasdaq 
market maker to charge a fee to a market participant that accesses 
through a Nasdaq-provided facility or telephone the market maker's 
Agency Quote (as defined in NASD Rule 4613(b)), so long as the market 
maker meets all NASD requirements for displaying the Agency Quote; 
provided however, a market maker may not charge a UTP Specialist a fee 
for accessing its quote when the UTP Specialist accesses the Agency 
Quote by telephone from the floor of the UTP exchange. For purposes of 
this rule a ``UTP Specialist'' shall mean a broker/dealer registered as 
a specialist in Nasdaq securities pursuant to the rules of an exchange 
that is a signatory to the Joint Self-Regulatory Organization Plan 
Governing the Collection, Consolidation and Dissemination Of Quotation 
and Transaction Information For Exchange-Listed Nasdaq/National Market 
System Securities Traded On Exchanges On An Unlisted Trading Privilege 
Basis (``Nasdaq/NMS/UTP Plan'').
    (d)-(e) No Change.\4\
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    \4\ Nasdaq recently filed a proposed rule change, SR-NASD-99-09, 
to permit the separate display of customer orders by market makers 
in Nasdaq through a market maker agency identification symbol 
(``Agency Quote''). Under that proposal, the Agency Quote rule would 
be designated as NASD Rule 4613(b). The current NASD Rule 4613(b), 
regarding Firm Quotations, would be redesignated as NASD Rule 
4613(c), and current NASD rule 4613(c) would be redesignated as NASD 
Rule 4613(d). That proposal would also eliminate current NASD Rule 
4613(d), regarding Reasonably Competitive Quotations, as the 
requirements of this subparagraph were eliminated as of October 13, 
1997 by Exchange Act Release No. 39120 (Sept. 23, 1997), 62 FR 51170 
(Sept. 30, 1997). See note 2, above. This filing reflects the 
proposed redesignations.
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4615. Quotation Rounding and Other Requirements for Agency Quotations 
and ECNs

    (a) An electronic communications network (``ECN'') included in 
Nasdaq pursuant to Rule 4623 or a Nasdaq market maker that displays an 
Agency

[[Page 24432]]

Quote (as defined in NASD Rule 4613) must round its bid down and/or its 
offer up by the next minimum quotation increment permitted by Nasdaq's 
system (or if the access fee, as described below, is larger than one 
minimum quotation increment, the market maker or ECN must round its 
bid(offer) down(up) to the next minimum increment that is equal to or 
greater than the access fee) if:
    (1) the ECN charges non-subscribers that access its quote a fee in 
excess of one-half of one cent per share; or
    (2) the Nasdaq market maker charges any participant that accesses 
the market maker's Agency Quote (as defined in NASD Rule 4613) a fee in 
excess of one-half of one cent per share.
    (b) Prior to commencing to charge for a fee for accessing its 
Agency Quote, a Nasdaq market maker shall inform Nasdaq Market 
Operations in writing of the maximum fee it intends to charge any 
market participant that accesses its Agency Quote (Initial Notification 
Requirement). Additionally, the market maker shall immediately inform 
Nasdaq Market Operations in writing of any change in the maximum fee it 
charges any market participant (Continuous Notification Requirement). 
The Initial Notification and Continuous Notification requirements shall 
also apply to ECNs included in Nasdaq.
    (c) It shall be deemed conduct inconsistent with high standards of 
commercial honor and just and equitable principles of trade if a member 
fails to fulfill its obligations as outlined above.
4623. Electronic Communications Networks
    (a) No change.
    (b) An ECN that seeks to utilize the Nasdaq-provided means to 
comply with the ECN display alternative shall:
    (1)-(3) No Change.
    (4) agree to provide for Nasdaq's dissemination in the quotation 
data made available to quotation vendors the prices and sizes of Nasdaq 
market maker orders (and other entities, if the ECN so chooses) at the 
highest buy price and the lowest sell price for each Nasdaq security 
entered in and widely disseminated by the ECN; and prior to entering 
such prices and sizes, register with Nasdaq Market Operations as an 
ECN; [and]
    (5) provide an automated execution or, if the price is no longer 
available, an automated rejection of any order routed to the ECN 
through the Nasdaq-provided display alternative[.]; and
    (6) comply with applicable requirements of NASD Rule 4615.
    (c) No Change.

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.

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

    Nasdaq is proposing to amend NASD Rule 3320 regarding Offers at 
Stated Prices and NASD Rule 4613(c) regarding Firm Quotations, which 
arguably could be read to prohibit market makers from charging market 
participants fees when quotes are accessed. Nasdaq also is proposing to 
require market makers and ECNs to round their quotations to the next 
minimum quotation increment when: (1) the ECN charges non-subscribers a 
fee in excess of one-half of one cent to access its quote; and (2) the 
market maker charges another market participant a fee in excess of one-
half of one cent to access its Agency Quote (as defined in NASD rule 
4613).\5\
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    \5\ See id.
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1. Background
    Recently, Nasdaq filed with the Commission a proposal to allow 
market makers in Nasdaq National Market Securities (``NNM'') to display 
a second quotation separate from their proprietary quotation for the 
purpose of displaying customer interest (``Agency Quote Proposal'').\6\ 
As noted in the Agency Quote Proposal filing,\7\ Nasdaq's intended 
purpose of the Agency Quote was to give market makers an alternative 
method to display agency interests to the market and to return 
``control'' over their quotes that market makers argue they lost with 
the implementation of the SEC's Order Handling Rules (``OHR'').\8\ 
Additionally, the Agency Quote Proposal attempts to resolve the 
regulatory and administrative difficulties that market makers 
experience as a result of being required to display customer orders and 
other agency interests as well as market makers' proprietary interests 
in a single quote.
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    \6\ Id.
    \7\ Id. As noted in the Agency Quote Proposal, market makers 
assert that they have ``lost control'' of their quotes because they 
must change their proprietary quote to reflect certain limit orders 
and must ``advertise competing interests in their quotes.'' The 
original text in this footnote has been changed pursuant to a 
telephone conversation between John Malitzis, Assistant General 
Counsel, Office of the General Counsel, Nasdaq, and Marc McKayle, 
Attorney, Division, Commission (April 22, 1999).
    \8\ The OHR, comprised of amendments to Rule 11Ac1-1 (``Firm 
Quote Rule'') and the adoption of Rule 11 Ac1-4 (``Display Rule''), 
were adopted by the Commission on August 28, 1996. See Securities 
Exchange Act Release No. 37619A (September 6, 1996), 61 FR 48290 
(September 12, 1996) (``OHR Adopting Release'').
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    Also, as noted in the Agency Quote Proposal, many ECNs currently 
charge fees to market participants (and ECN subscribers) that execute 
against a customer order that is displayed in the ECN. Although market 
makers currently may not charge a similar fee when their public quotes 
are accessed, market makers have expressed a desire to do so, in 
particular since they often are acting as agent by displaying a 
customer's interest in their quote. Nasdaq believes that it is 
inequitable that ECNs are permitted to charge a fee when their quote is 
accessed, but market makers are prohibited from charging a fee in 
similar situations when they act as agent.
    Nasdaq notes that concerns have been raised about this perceived 
inequity. Specifically, Nasdaq suggests that the present environment 
encourages market makers to send their customer limit orders to ECNs to 
comply with the OHR. Thus, market makers often must give up some of 
their business and incur ECN fees to process their customer's limit 
orders. Market makers argue that it is unfair that an ECN may charge a 
fee when its quote is accessed but they (market makers) are prohibited 
from charging a fee when they are representing an agency interest in 
their quote. Thus, there are strong incentives for market makers to 
register as ECNs to avoid some of the regulatory and other requirements 
imposed on market makers, as well as risk to capital that market makers 
assume. Additionally, market makers argue that they, like ECNs, should 
be able to charge an access fee when they are acting purely as agent. 
Similar to ECNs, the access fee charged would compensate market makers 
for costs incurred in representing orders in Nasdaq on an agency basis.
    In adopting the OHR, the Commission required that ECNs provide 
broker-dealers access to market maker orders reflected in the ECN's 
public quote that was equivalent to broker-dealer access to the market 
maker's own quotes. Currently, the Firm Quote Rules and NASD rules 
generally require market makers to trade at their displayed

[[Page 24433]]

quotes, without any additional fees. Nonetheless, the OHR Adopting 
Release stated that an ECN could charge ``for access to its system, 
similar to the communications and systems charges imposed by various 
markets, if not structured to discourage access by non-subscriber 
broker-dealers.'' \9\ Subsequently, Commission staff no-action letters 
affirmed that individual ECNs could be used by market makers in 
compliance with the OHR. In these letters the ECNs represented, as a 
condition of receiving the no-action relief, that they would charge 
non-subscriber orders fees no greater than the lesser of the fees 
charged a substantial number of active broker-dealer subscribers, and 
one and one-half cents per share.
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    \9\ Id. at n. 272.
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    Regulation ATS extended the OHRs' equivalent access standard for 
alternative trading systems publishing public quotations.\10\ In 
Regulation ATS, the Commission acknowledged that a self-regulatory 
organization (``SRO'') has the authority to adopt rules limiting 
alternative trading systems fees, or requiring display of fees in the 
quote, to make alternative trading system quotes that are disseminated 
to the public comparable with other quotes in the SRO's market.\11\
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    \10\ See Exchange Act Release No. 40760 (Dec. 8, 1998), 63 FR 
70844 (December 22, 1998) (``Regulation ATS Adopting Release'').
    \11\ Id.
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    The fees charged by ECNs to non-subscriber broker-dealers accessing 
ECN quotes have provoked much controversy. Market makers have argued 
that ECNs publishing quotes in Nasdaq should not be allowed to charge 
fees to trade with those quotes, on, in fairness, market makers should 
be allowed to charge ECNs and others that trade with the market maker's 
quotes. Broker-dealers say that while best execution principles compel 
them to trade with better-priced displayed ECN quotes to benefit their 
customers, these customers are generally unwilling to pay the fee 
charged by the ECN in that trade.
    The ECNs say that their business model depends on charging both 
sides of a transaction an agency commission. They argue that they 
should still be able to charge these fees even when the OHR and 
Regulation ATS require them to display prices in the public quote.
    The Nasdaq rule proposal would address these issues by allowing 
market makers, like ECNs, to charge fees to access their agency quotes. 
The proposal would, however, require both market makers and ECNs to 
round this quote to the next inferior increment if the fee exceeded 
half-a-cent per share.\12\
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    \12\ As explained in more detail below, the Commission is 
seeking comment not only on the NASD rule filing as currently 
proposed, but also on the broader questions raised by ECN and ATS 
fees for accessing quotes and possible ways of reconciling these 
fees with the existing Nasdaq market.
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2. Agency Fee Proposal
    In light of the foregoing, Nasdaq is proposing to permit market 
makers to charge a fee when their Agency Quote is accessed, similar to 
that ECNs currently charge non-subscribers. Under this proposal, a 
market maker would be permitted to charge a fee but would be required 
to round its bid down or its offer up by the applicable minimum 
quotation increment in Nasdaq if the maximum fee the market maker 
charges any market participant exceeded one-half of the one cent. If 
the access fee the market maker charges is greater than a single 
minimum increment, then the market maker would have to round its Agency 
Quote to the next minimum increment that is equal to or greater than 
the access fee.\13\ In effect, the market maker's fee would be included 
in the market maker's Agency Quote if the charge exceeded one-half of 
one cent. A virtually identical rounding requirement would apply to 
ECNs.\14\ Nasdaq believes that when a quote-access fee exceeds a half-
a-cent per share, the net execution price materially differs from the 
quoted price, and thus the fee should be rounded to account for such 
differential.
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    \13\ Nasdaq notes that the half-a-cent level is equivalent to 
the average fee that most ECNs charge their professional customers.
    \14\ ECNs currently are not subject to a requirement that they 
round their quotes to reflect a fee.
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    For example, a bid of 20 for a market participant that charges a 
fee of .006 cents per share would be rounded down to $19\15/16\, while 
an offer of 20 with the same charge would be rounded up to 20\1/16\. As 
a second example, if a market participant charged a fee of twelve and a 
half cents per share (i.e., \1/8\th point) on a $20 buy limit order, 
the market participant would have to display that buy limit order at 
$19\7/8\ (or \1/8\th down).
    There would be no cap on the fee market participants could charge, 
nor is Nasdaq mandating that market participants charge the same rate 
to all market participants that access the market participant's quote 
(i.e., market makers and ECNs may vary access fees for different market 
participants).\15\ Nasdaq notes, however, that it believes the Nasdaq 
UTP Plan would prohibit a market maker from charging a UTP Specialist 
an access fee when the UTP Specialist accesses the market maker's 
Agency Quote by telephone.\16\ The proposal, accordingly, prohibits 
market makers from charging when a UTP Specialist accesses a market 
maker's quote by phone. The UTP Plan does not, however, explicitly 
prohibit market makers from charging UTP Specialists a fee when a 
market maker's quote is accessed by a means other than the telephone, 
such as a Nasdaq order delivery system.
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    \15\ The proposed rule would not prevent market participants 
from rebating fees to a customer or customers.
    \16\ See Section IX (``Market Access''), Joint Self-Regulatory 
Organization Plan Governing the Collection, Consolidation and 
Dissemination Of Quotation and Transaction Information For Exchange-
Listed Nasdaq/National Market System Securities Traded On Exchanges 
On An Unlisted Trading Privilege Basis (``Nasdaq/NMS/UTP     Plan 
'').
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    The proposal would require all market makers and ECNs to inform the 
NASD of the maximum (or highest) fee the market maker or ECN intends to 
charge any single market participant, as well as any changes in 
previously established fees. The NASD intends to publish and widely 
distribute this fee information through a common facility, such as the 
Nasdaqtrader.com Web Site. Nasdaq is sensitive to the concerns that 
allowing market makers to charge the proposed fee could result in the 
imposition of administrative burdens and other costs on small firms, as 
firms would be required to calculate the fees they owe and are owed. To 
alleviate these concerns, Nasdaq intends to develop through a common 
facility (e.g., the Nasdaqtrader.com Web Site) reports and data that 
firms may use to calculate the fees. In addition, to implement the 
Agency Quote proposal, Nasdaq is proposing amendments to current NASD 
rules (e.g., NASD Rule 3320 regarding Offers at Stated Price and NASD 
Rule 4613 regarding Firm Quotations), which arguably could be read to 
prohibit market makers from charging market participants fees when 
their quotes are accessed.
    Nasdaq believes that where a quote is subject to the rounding 
requirement, a market participant should make a number of disclosures 
to its customer to fulfill its best execution obligations. First, the 
market participant should disclose and explain that while rounding will 
result in price improvement by the amount rounded, the rounding may 
delay the execution of the order because the order will be reflected at 
a lower price, in the case of buy orders (or higher price, in the case 
of sell orders). Additionally, a market maker must disclose (if 
applicable) that when the quote is rounded down (up) the market maker 
will collect the access

[[Page 24434]]

fee from the customer, since the accessing market participant has 
already paid the fee with the implicit inclusion of the fee in the 
quote. (An example of this situation is illustrated below.)
    The following is an example of how the proposal would work. Three 
market makers and an ECN (MNA, MMB, MMC and ECN1) are at the inside 
(i.e., best) price of each displaying in their quotes (Agency Quotes 
for the market makers), customer orders to buy 1,000 shares at $30. MMA 
charges no access fee, MMB charges a fee of .002 cents per share, MMC 
charges a fee of .007 cents per share, and ECN1 charges a fee of .015 
cents per share. The following would be displayed in the Nasdaq 
montage:

------------------------------------------------------------------------
                       MMID                          Bid price    Shares
------------------------------------------------------------------------
MMA@..............................................        $30      1,000
MMB@..............................................         30      1,000
MMC@..............................................    29\15/16\    1,000
ECN1#.............................................    29\15/16\    1,000
------------------------------------------------------------------------

    If two 1,000-share market orders to sell were entered into Nasdaq's 
Small Order Execution System (``SOES'') (or its successor system),\17\ 
both orders would be executed automatically and reported to the tape at 
1,000 shares at $30; to collect the access fee, MMB would directly bill 
the market participant who accessed its quote.
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    \17\ See note 3, above.
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    Next, assume that the best market moves to MMC's price, and a 
market order is delivered through SOES to MMC's bid, which represents a 
customer buy limit order for $30 that is rounded down to $29\15/16\. In 
this case, the Nasdaq system would automatically execute and lock in 
the trade at $29\15/16\ (not $30), and report that price to the tape. 
The incoming market order would be executed at $29\15/16\, and the 
market maker would be required to give the customer buy limit order a 
fill of $29\15/16\. As noted above, MMC must disclose to its customer 
that, based on the access fee it charges other market participants, it 
is required to round the customer's limit order price down, and that 
while rounding will result in price improvement of \1/16\th, the 
rounding may also delay the execution of the order. Additionally, MMC 
must disclose that because the incoming market order is implicitly 
paying a fee by selling to MMC's customer for \1/16\th less, MMC will 
collect the .007 cents per share from its customer (i.e., MMC deducts 
the .007 cents per share from the .0625 cents per share in price 
improvement that the customer received).\18\
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    \18\ Since the market maker has already implicitly assessed a 
fee on the incoming market order by rounding the limit order price 
down \1/16\th, Nasdaq believes that MMC should not charge the 
incoming market order an additional access fee; rather, Nasdaq 
believes that MMC should collect its .007 cents per share fee from 
its customer.
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* * * * *
    This proposal is contingent upon SEC approval of the Agency Quote 
Proposal, and would become effective concurrently with Nasdaq's 
implementation of the Agency Quote Proposal.\19\ Nasdaq believes that 
the proposed rule change is consistent with the provisions of Section 
15A(b)(6) \20\ and Section 11A of the Act.\21\ Section 15A(b)(6) \22\ 
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 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, 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. 
Moreover, under Section 15A(b)(6) of the Act,\23\ the rules of a 
registered national securities association must not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers. In Section 11A(a)(1)(C) of the Act,\24\ Congress found 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 
quotations and transactions in securities; (4) the practicability of 
brokers executing investor's orders in the best market; and (5) an 
opportunity for investor's orders to be executed without the 
participation of a dealer.
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    \19\ See Amendment No. 1, note 3, above.
    \20\ 15 U.S.C. 78o-3(b)(6).
    \21\ 15 U.S.C. 78k-1.
    \22\ 15 U.S.C. 78o-3(b)(6).
    \23\ Id.
    \24\ 15 U.S.C. 78k-1(a)(1)(C).
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    Nasdaq believes that by requiring market participants to round 
their quotes and in effect display the fee in their quotation when the 
fee exceeds a certain level, the proposal will avoid the dissemination 
of potentially misleading quotation information. Nasdaq believes that 
when quote-access fee exceed a half-a-cent per share, the net execution 
price materially differs from the quoted price. To the extent that this 
results in a market participant having to pass on the quoted price to 
the customer, it may act to deter that market participant from acting 
as a market maker. On the other hand, if the market maker passes a fee 
on to its customer, this may result in dissatisfaction because the 
customer perceives that he or she did not obtain the best price in the 
market. In contrast, under Nasdaq's instant proposal, the firm will 
receive the quoted price, thus eliminating this concern. Finally, the 
proposal would address perceived inequities that currently exist 
between market makers and ECN's, as the proposal would allow market 
makers to charge a fee when they act as agent, similar to that which 
ECNs currently charge to non-subscribers.
    Nasdaq notes that in the past the SEC staff has taken the position 
that it is inconsistent with the Firm Quote Rule, Rule 11Ac1-1 under 
the Act,\25\ for market makers to charge a fee when their quotations 
are accessed.\26\ Nasdaq believes that the SEC staff's position was, in 
part, premised on the fact that market makers would be charging when 
the market maker was acting as ``principal'' and in essence charging a 
mark-up customers it ordinarily would not levy such a charge on. Under 
the current proposal, market makers would be assessing a fee on 
customers (and

[[Page 24435]]

others) that is in essence a commission solely when they are acting in 
an agency capacity. Similar to ECNs. While a market maker may not be 
able to charge a fee when it is acting in a principal's capacity for 
the reasons previously cited by the SEC staff, Nasdaq believes that it 
would be consistent with the Exchange Act Firm Quote Rule to permit 
market makers to charge a fee when they are acting as agent. 
Accordingly, Nasdaq believes that this rule proposal is consistent with 
Section 11A of the Act.\27\
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    \25\ See 17 CFR 240.11Ac1-1.
    \26\ Specifically, the SEC staff has stated in response to a 
request for ``non-action relief '' that the Exchange Act Firm Quote 
Rule does not permit a market maker posting a quote impose a fee on 
market participants that customarily trade with the market maker at 
its quote without a mark-up. See letter from Robert L.D. Colby, 
Deputy Director, Division, Commission, to M. Joseph Messina, Vice 
President, M.H. Meyerson & Co., Inc., dated June 12, 1998. In 
reaching this conclusion, the SEC staff noted that the Firm Quote 
Rule provides that each responsible broker or dealer shall be 
obligated to execute any order to buy or sell a subject security 
presented to it by another broker or dealer or any other person, 
such as a retail customer, with whom such responsible broker or 
dealer deals, at a price at least as favorable to such buyers or 
sellers as the responsible broker's or dealer's published bid or 
published offer (exclusive of commission or commission equivalent or 
differential customarily charged by such responsible broker or 
dealer in connection with execution of any such order) in an amount 
up to its published quotation size. Id. The SEC staff has 
interpreted the above parenthetical as addressing mark-ups that are 
customarily charged to retail customers by brokers. Id.  Thus, 
according to the SEC staff, the Firm Quote Rule does not permit a 
market posting quotations in the public quote to impose a fee, such 
as a liquidity or access fee, on market participants that 
customarily trade with a market maker at its quote without a mark-
up. Id.
    The SEC staff also stated that it interpreted NASD Rule 4613(b) 
(``NASD Firm Quote Rule'') as requiring market makers to include in 
their posted quote an access fee they may charge. Id. Nasdaq 
expresses no opinion as to whether it concurs with the SEC staff's 
prior interpretation of NASD Rule 4613, but notes that this filing 
would permit market makers to publish quotes without including the 
fee in its bid or offer, unless such fee exceeds a half-a-cent, in 
which case the fee would implicitly be included in the market 
maker's quote.
    \27\ 15 U.S.C. 78k-1.
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(B) Self-Regulatory Organization's Statement to Burden on Competition

    Nasdaq does not believes 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 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 self-regulatory organization 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. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. The Commission asks for comments in 
particular on the following questions:

    1. Should market makers be permitted to charge a fee to trade 
with limit orders in their agency quote lines? In addition to 
charging for agency orders displayed in their agency quote lines, 
should market makers be permitted to charge a fee for proprietary 
orders displayed in their agency quote lines?
    2. Should any fee charged by market makers for orders executed 
against their agency quote lines be included in the quoted price? 
Should ECN fees be included in an ECN's quote? If ECN fees are 
required to be included in the quote, how should the fact that an 
ECN may have a range of fees it charges its broker-dealer 
subscribers be addressed?
    3. Should there be a maximum permissible fee charged by market 
makers and ECNs, and if so, what should that fee be? Should market 
makers and ECNs be prohibited from charging a fee that is greater 
than one trading increment? Would disparate fees create confusion in 
the marketplace?
    4. Will competition ensure that fees are not used as a barrier 
to access?

    Persons making written submissions should file six copies thereof 
with the Secretary, Securities and Exchange Commission, 450 Fifth 
Street, N.W., Washington, D.C. 20549-0609. 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 principal office of the 
NASD.
    All submissions should refer to File No. SR-NASD-99-16 and should 
be submitted by June 1, 1999.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-11361 Filed 5-5-99; 8:45 am]
BILLING CODE 8010-01-M