[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Notices]
[Pages 29723-29725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13867]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-41441; File No. SR-NYSE-98-47]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the New York Stock Exchange, Inc. To Adopt Rule 440 I 
Requiring Records of Compensation Arrangements Concerning Floor 
Brokerage

May 24, 1999.
    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 December 23, 1998, the New York Stock Exchange, Inc. (``NYSE'' or 
``Exchange'') 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 
Exchange. Amendment No. 1 was filed with the Commission on May 14, 
1999.\3\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter to Richard C. Strasser, Assistant Director, 
Division of Market Regulation, SEC, from James E. Buck, Senior Vice 
President and Secretary, NYSE dated May 12, 1999.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    The NYSE is filing a proposed rule change to adopt new Rule 440 I, 
Records of Compensation Arrangements--Floor Brokerage. Below is the 
text of the proposed rule change. Additions are italicized.

Rule 440 I Records of Compensation Arrangements--Floor Brokerage

    (a) Every member not associated with a member organization and each 
member organization primarily engaged as an agent in executing 
transactions on the Floor of the Exchange must maintain a written 
record including a description of each type of compensation arrangement 
entered into with other members, member organizations, non-member 
organizations and customers in connection with transactions executed on 
the Floor of the Exchange.
    (b) Records maintained in accordance with paragraph (a) of this 
Rule must identify, by name, the members, member organizations, non-
member organizations and customers who are parties to each type of 
compensation arrangement in effect.
 Supplementary Material
    .10 For purposes of paragraphs (a) and (b) of this Rule 440 I, the 
requirement to maintain a written record of each type of compensation 
arrangement shall not apply to:
    (a) any compensation arrangement wherein a member or member 
organization receives gross compensation of less than $10,000 per year 
from any member, member organization, non-member organization or 
customer; or
    (b) any compensation arrangement involving the transmission of 
orders solely through the Exchange's electronic order routing system.
    .20 A member or member organization is deemed to be primarily 
engaged as an agent in executing transactions on the Floor of the 
Exchange if at least 75% of its revenue is derived from floor 
brokerage.

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

    In its filing with the Commission, the Exchange 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. The Exchange 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

1. Purpose
    New Rule 440 I will require that every member not associated with a 
member organization, and each member organization primarily engaged as 
an agent in executing transactions on the Floor of the Exchange, 
maintain a written record of each type of compensation arrangement that 
they enter into with other members, member organizations, non-member 
organizations, or customers relating to transactions on the Floor. The 
written record must include a description of each type of arrangement 
and identify, by name, the parties to each type of arrangement in 
effect.
    In addition, proposed Rule 440 I, Supplementary Material .10 
excludes the following compensation arrangements from the requirements 
to maintain a written record:

[[Page 29724]]

    (1) arrangements involving gross compensation of less than $10,000 
per year; and
    (2) arrangements involving orders transmitted solely through the 
Exchange's electronic order routing system (e.g. SuperDot).
    Rule 440 I, Supplementary Material .20 provides that a member or 
member organization is deemed to be primarily engaged as an agent in 
executing transactions on the Floor of the Exchange if at least 75% of 
its revenue is derived from floor brokerage.
    Rule 440 I will enhance the Exchange's oversight of floor brokerage 
compensation arrangements in connection with Exchange members' and 
member organizations' compliance with Section 11(a) of the Act \4\ and 
Rule 11a-1 \5\ thereunder which, among other things, prohibit a member 
or member organization from executing on the Exchange an order for that 
member's or member organization's ``own account'' or any account in 
which the member or member organization has an interest, unless the 
member or member organization acts in reliance on one of the exceptions 
provided in Section 11(a).\6\
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    \4\ 15 U.S.C. 78k(a).
    \5\ 17 CFR 240.11a-1.
    \6\ The circumstances under which a member or member 
organization may trade for its ``own account'' or any account in 
which the member or member organization has a interest are listed in 
Section 11(a)(1)(A)-(I). 15 U.S.C. 78k(a)(1)(A)-(I).
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    The new rule will apply to members and member organizations 
primarily engaged as agents in executing transactions on the Floor of 
the Exchange (e.g., so called ``$2 brokers'' or ``independent 
brokers''). The Exchange has determined to exclude from the scope of 
proposed new Rule 440 I ``upstairs'' (i.e., off the Floor) members and 
member organizations because the Exchange believes that the 
requirements would be unduly burdensome on and impractical for those 
members and member organizations, based on the diverse nature and size 
of their business activities and customer base. Because of their size, 
the Exchange believes that these upstairs organizations generally have 
independent supervisory structures and internal control procedures of 
the supervision and review of the organization's diverse business 
activities, including the monitoring and review of compensation 
arrangements. Accordingly, the Exchange believes that the existing 
regulatory scheme is adequate, and that the application of the 
requirements of the new rule to upstairs organizations would be 
duplicative and unnecessary.
    In contrast, according to the NYSE, the supervisory oversight and 
review structure for Floor members and member organizations is very 
different from upstairs organizations. Many Floor members act as sole 
proprietors with a limited customer and product base and, therefore, do 
not generally have independent supervisory structures nor are they 
subject to the same formalized internal supervisory oversight as 
upstairs organizations. Absent the requirements of proposed new Rule 
440 I, records of compensation arrangements may not be maintained in a 
formalized manner by the Floor members and member organizations. Rule 
440 I will provide an audit trail by requiring the creation of records 
of compensation arrangements that will facilitate the implementation 
and maintenance of the Exchange's new examination program geared 
specifically to such members. Proposed Rule 440 I specifies a type of 
record, records of compensation arrangements, in addition to the 
records required to be maintained pursuant to Rules 17a-3 \7\ and 17a-4 
of the Act,\8\ that will be critical in providing the Exchange the 
ability to monitor Floor Broker activities.
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    \7\ 17 CFR 204.17a-3.
    \8\ 17 CFR 204.17a-4.
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    Maintaining records of compensation arrangements by members and 
member organizations primarily engaged as agents in executing 
transactions on the Floor will facilitate the Exchange's review of 
these members' and member organizations' activities on an ongoing basis 
as part of the routine examination process, as well as on a for cause 
basis. During the course of routine reviews and examinations, the 
Exchange will be able to sample those compensation arrangements in 
place to review for compliance with section 11(a) of the Act in terms 
of whether any such arrangement constitutes a member or member 
organization having an interest in an account.
    The adoption of proposed new Rule 440 I will better enable the 
Exchange to review and examine, as necessary, members' and member 
organizations' activities in connection with the Exchange's regulatory 
oversight responsibility to surveil for potentially violative conduct.
 2. Statutory Basis
    The basis under the Act for the proposed rule change is the 
requirement under Section 6(b)(5) \9\ that an Exchange have rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, 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. The Exchange represents that the proposed rule change 
is designed to accomplish these ends by strengthening the Exchange's 
ability to examine and surveil activities on the Exchange Floor.
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    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange represents that the proposed rule change will impose 
no burden on competition.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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 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 proposed rule 
change 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 20549-0609. 
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 
Commission's Public Reference

[[Page 29725]]

Room. Copies of such filing will also be available for inspection and 
copying at the principal office of the Exchange. All submissions should 
refer to File No. SR-NYSE-98-47 and should be submitted by June 23, 
1999.

    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).

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-13867 Filed 6-1-99; 8:45 am]
BILLING CODE 8010-01-M