[Federal Register Volume 64, Number 243 (Monday, December 20, 1999)]
[Notices]
[Pages 71160-71162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32819]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-42224; File No. SR-NYSE-94-34]


Self-Regulatory Organizations; Notice of Filing of Amendment No. 
5 to Proposed Rule Change by the New York Stock Exchange, Inc. to 
Revise Exchange Rule 92, ``Limitations on Members' Trading Because of 
Customers' Orders''

December 13, 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 October 28, 1999, the New York Stock Exchange, Inc. (``Exchange'' or 
``NYSE'') filed with the Securities and Exchange Commission 
(``Commission'') Amendment No. 5 to the proposed rule change as 
described in Items I, II and III below, which Items have been prepared 
by the Exchange. 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.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    As originally filed in 1994, the proposed rule change would amend 
Exchange Rule 92 (``Rule 92'') to permit NYSE member organizations to 
trade along with their customers when such member organizations 
liquidate a block facilitation position or engage in bona fide 
arbitrage or risk arbitrage. Amendment No. 5 to the proposal clarifies 
the limited exception for transactions effected to hedge a customer 
facilitation position, and provides further explanation of how the 
revised Rule 92 will operate.
    The following is the text of the proposed rule change marked to 
reflect all of the proposed changes.\3\ Additions to the current text 
of Exchange Rule 92 appear in italics while deletions appear in 
[brackets].
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    \3\ As presented, the text of the proposed rule change 
incorporates all of the proposed changes made to the original rule 
proposal by Amendment Nos. 1, 2, 3, 4, and 5. See Securities 
Exchange Act Release Nos. 35139 (Dec. 22, 1994), 60 FR 156 (Jan. 3, 
1995) (notice of filing of proposed rule change, including Amendment 
No. 1); 36015 (July 21, 1995), 60 FR 38875 (July 28, 1995) (notice 
of filing of Amendment No. 2); 37428 (July 11, 1996), 61 FR 37523 
(July 18, 1996) (notice of filing of Amendment No. 3); 39634 (Feb. 
9, 1998), 63 FR 8244 (Feb. 18, 1998) (notice of filing of Amendment 
No. 4). On November 22, 1999, the Exchange submitted a technical 
correction to Amendment No. 5 to better identify the cumulative 
proposed changes to Exchange Rule 92. See Electronic mail message 
from Donald Siemer, Director, Market Surveillance, Exchange, to 
Michael L. Loftus, Special Counsel, Division of Market Regulation, 
Commission, dated November 22, 1999.
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Rule 92: Limitations on Members' Trading Because of Customers' 
Orders

    [(a) No member shall (1) personally buy or initiate the purchase of 
any security on the Exchange for his own account or for any account in 
which he, his member organization or any other member, allied member or 
approved person, in such organization or officer thereof, is directly 
or indirectly interested, while such member personally holds or has 
knowledge that his member organization holds an unexecuted market order 
to buy such security in the unit of trading for a customer, or (2) 
personally sell or initiate the sale of any security on the Exchange 
for any such account, while he personally holds or has knowledge that 
his member organization holds an unexecuted market order to sell such 
security in the unit of trading for a customer.
    (b) No member shall (1) personally buy or initiate the purchase of 
any security on the Exchange for any such account, at or below the 
price at which he personally holds or has knowledge that his member 
organization holds an unexecuted limited price order to buy such 
security in the unit of trading for a customer, or (2) personally sell 
or initiate the sale of any security on the Exchange for any such 
account at or above the price at which he personally holds or has 
knowledge that his member organization holds an unexecuted

[[Page 71161]]

limited price order to sell such security in the unit of trading for a 
customer.]
    (a) Except as provided in this Rule, no member or member 
organization shall cause the entry of an order to buy (sell) any 
Exchange-listed security for any account in which such member or member 
organization or any approved person thereof is directly or indirectly 
interested (a ``proprietary order''), if the person responsible for the 
entry of such order has knowledge of any particular unexecuted 
customer's order to buy (sell) such security which could be executed at 
the same price.
    (b) A member or member organization may enter a proprietary order 
while representing a customer order which could be executed at the same 
price, provided the customer's order is not for the account of an 
individual investor, and the customer has given express permission, 
including an understanding of the relative price and size of allocated 
execution reports, under the following conditions:
    (1) the member or member organization is liquidating a position 
held in a proprietary facilitation account, and the customer's order is 
for 10,000 shares or more;
    (2) the member or member organization is creating a bona fide hedge 
(``hedge'') and (i) the creation of the hedge, whether through one or 
more transactions, occurs so close in time to the completion of the 
transaction precipitating such hedge that the hedge is clearly related; 
(ii) the size of the hedge is commensurate with the risk it offsets; 
(iii) the risk to be offset is the result of a position acquired in the 
course of facilitating a customer's order; and (iv) the customer's 
order is for 10,000 shares or more;
    (3) the member or member organization is modifying an existing 
hedge and (i) the size of the hedge, as modified, remains commensurate 
with the risk it offsets; (ii) the hedge was created to offset a 
position acquired in the course of facilitating a customer's order; and 
(iii) the customer's order is for 10,000 shares or more; or
    (4) the member or member organization is engaging in bona fide 
arbitrage or risk arbitrage transactions, and recording such 
transactions in an account used solely to record arbitrage transactions 
(an ``arbitrage account'').
    (c) The provisions of this Rule shall not apply to:
    (1) [to] any purchase or sale of any security in an amount of less 
than the unit of trading made by an odd-lot dealer to offset odd-lot 
orders for customers[, or];
    (2) [to] any purchase or sale of any security upon terms for 
delivery other than those specified in such unexecuted market or 
limited price order[.];
    (3) transactions by a member or member organization acting in the 
capacity of a market maker pursuant to Securities and Exchange 
Commission Rule 19c-3 in a security listed on the Exchange;
    (4) transactions by a member or member organization acting in the 
capacity of a specialist or market maker on another national securities 
exchange; and
    (5) transactions made to correct bona fide errors.

Supplementary Material

    .10 A member or employee of a member or member organization 
responsible for entering proprietary orders shall be presumed to have 
knowledge of a particular customer order unless the member organization 
has implemented a reasonable system of internal policies and procedures 
to prevent the misuse of information about customer orders by those 
responsible for entering such proprietary orders.
    .20 This Rule shall apply to any agency or proprietary transaction 
effected on the Exchange if such transaction (``Exchange transaction'') 
is part of a group of related transactions that together have the 
effects prohibited by the Rule, regardless of whether (i) one or more 
of the other related transactions were effected on other market 
centers; or (ii) the Exchange transaction by itself had such effects.
    .30 This Rule shall also apply to a member organization's member on 
the Floor, who may not execute a proprietary order at the same price, 
or at a better price, as an unexecuted customer order that he or she is 
representing, except to the extent the member organization itself could 
do so under this Rule.
    .40 For purposes of paragraph (b) above, the term ``account of an 
individual investor'' shall have the same meaning as the meaning 
ascribed to that term in Exchange Rule 80A. For purposes of paragraph 
(b)(1) above, the term ``proprietary facilitation account'' shall mean 
an account in which a member organization has a direct interest and 
which is used to record transactions whereby the member organization 
acquires positions in the course of facilitating customer orders. Only 
those positions which are recorded in a proprietary facilitation 
account may be liquidated as provided in paragraph (b)(1). For purposes 
of paragraph (b)(2) and (b)(4) above, the terms ``bona fide hedge'', 
``bona fide arbitrage'' and ``risk arbitrage'' shall have the meaning 
ascribed to such terms in Securities Exchange Act Release No. 15533, 
January 29, 1979. All transactions effected pursuant to paragraph 
(b)(4) above must be recorded in an arbitrage account.
    .50 For purposes of paragraph (b)(2) above, a hedge will be deemed 
to be ``clearly related'' if either the first or last transaction 
comprising the hedge is executed on the same trade date as the 
transaction that precipitates such hedge. A member shall mark all 
memoranda of orders to identify each transaction creating or modifying 
a hedge as permitted under this Rule.
    [.10] .60 A member who issues a commitment or obligation to trade 
from the Exchange through ITS or any other Application of the System 
shall, as a consequence thereof, be deemed to be initiating a purchase 
or sale of a security on the Exchange as referred to in this Rule.
    [.20] .70 See paragraph (c)(i) of Rule 800 (Basket Trading: 
Applicability and Definitions) and paragraph (d)(ii) of Rule 900 (Off-
Hours Trading: Applicability and Definitions) in respect of the ability 
to initiate basket transactions and transactions through the ``Off-
Hours Trading Facility'' (as Rule 900 defines that term), respectively, 
notwithstanding the limitations of this Rule.

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 and is set forth in Sections A, B, and C below.

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

1. Purpose
    As reflected in the original filing and Amendment Nos. 1, 2, 3, and 
4 thereto, the proposed rule change would establish limited exceptions 
to Rule 92 that permit NYSE member organizations to trade along with 
their customers when liquidating a block facilitation position, hedging 
a previously established facilitation position, or engaging in bona 
fide arbitrage or risk arbitrage. Amendment No. 4 to the filing 
proposed to extend the application of Rule 92 to trades effected by an 
NYSE member or member organization in

[[Page 71162]]

NYSE-listed securities, even if such trades occurred on other market 
centers (certain exceptions would be provided to over-the-counter 
market makers and specialists on regional exchanges).
a. Bona Fide Hedge Exception
    The Exchange seeks to clarify the proposed exception from Rule 92 
that would allow NYSE members or member organizations to trade along 
with a customer in the same security when the member or member 
organization engages in proprietary bona fide hedge transactions. Under 
the proposal, the creation of a bona fide hedge (``hedge'') must occur 
so close in time to the completion of the transaction precipitating 
such hedge that the hedge is clearly related. A hedge will be deemed to 
be ``clearly related'' to the transaction precipitating the hedge if 
either the first or last transaction comprising the hedge is executed 
on the same trade date as the transaction that precipitates such hedge. 
In addition, the size of the hedge must be commensurate with the risk 
it offsets. The proposal also requires that the risk to be offset must 
result from a position acquired when the member or member organization 
facilitated a customer's order. Finally, the customer's order that the 
NYSE member or member organization trades along with must be for 10,000 
shares or more.
    The proposal also would permit NYSE members or member organizations 
to modify an existing hedge that was created to offset a position 
acquired in a customer facilitation transaction. The hedge, as 
modified, must remain commensurate with the risk it offsets, and the 
customer's order that the NYSE member or member organization trades 
along with must be for 10,000 shares or more.
b. Application of Rule 92 to Other Market Centers
    The proposal prohibits NYSE members or member organizations from 
entering an order for their own or related accounts if the person 
entering the order has knowledge of a customer order capable of 
execution at the same price. Under Amendment No. 4 to the proposal, 
this prohibition would apply whether the trade for the customer or the 
NYSE member or member organization occurred on the Exchange or any 
other market center. Amendment No. 4 provides specific guidelines to 
help determine when Rule 92 would apply to proprietary or agency trades 
effected on another market center, including situations where neither 
segment nor ``leg'' of a customer facilitation transaction occurred on 
the Exchange.
    The Exchange seeks to further revise the proposed application of 
Rule 92. Specifically, the Exchange proposes to apply Rule 92 only in 
those situations where one or both trades (proprietary or agency) of a 
customer facilitation transaction are effected on the NYSE. If neither 
segment of a customer facilitation transaction occurs on the Exchange, 
Rule 92 would not apply.
c. Bona Fide Errors
    The proposal also would permit NYSE members and member 
organizations to trade along with customers when effecting a 
transaction to correct a bona fide error.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with section 6(b)(5) of the Act \4\ in that it is designed to promote 
just and equitable principles of trade, remove impediments to and 
perfect the mechanism of a free and open market, and, in general, 
protect investors and the public interest. The Exchange also believes 
that the proposed rule change will enable NYSE members and member 
organizations to add depth and liquidity to the Exchange's market, and 
help protect investors by requiring the express permission of customers 
in trading along situations.
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    \4\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed rule change will not impose 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

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

    The Exchange did not solicit or received written comments 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 Exchange 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, as amended, 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 submissions, 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 persons, 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 Section, at 450 Fifth 
street, NW, Washington, DC 20549. 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-94-34 and 
should be submitted by January 10, 2000.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\5\
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    \5\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-32819 Filed 12-17-99; 8:45 am]
BILLING CODE 8010-01-M