[Federal Register Volume 66, Number 63 (Monday, April 2, 2001)]
[Notices]
[Pages 17591-17592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8026]



[[Page 17591]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-44103; File No. SR-PHLX-01-08]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the Philadelphia Stock Exchange, Inc. Concerning Maintenance, 
Retention, and Furnishing of Records and Other Information With Respect 
to Payment for Order Flow Arrangements

March 26, 2001.
    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 January 19, 2001, the Philadelphia Stock Exchange, Inc. (``Phlx'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I, II, and III, below, which 
Items the Phlx has prepared. 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.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    The Phlx proposes to amend Phlx Rule 760 to require specifically 
that members and member organizations make, keep current, and preserve 
records relating to payment for order flow arrangements and make those 
records available to the Phlx upon request for inspection and review. A 
copy of the proposed Supplementary Material .01 to Rule 760 is 
available at the principal office of the Phlx and at the Commission.

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 Phlx organization 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 Phlx 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

    The purpose of the proposed rule change is to specify that members 
and member organizations make, keep current, preserve, maintain and 
make available records relating to payment for order flow arrangements. 
The proposed rule change supplements the general recordkeeping 
provisions of Phlx Rule 760, which requires every member to make, 
maintain, preserve and make available books and records as prescribed 
by the Act, the rules and regulations under the Act, and the rules of 
the Phlx.
    The Phlx began imposing payment for order flow fees on certain 
options transactions of specialists and Registered Options Traders 
(``ROTs'') as of August 1, 2000. A fee, currently $1.00 per contract, 
is imposed on all transactions executed by specialists and ROTs in the 
Top 120 Options traded on the Phlx, with various exceptions.\3\ The 
specialists make all determinations concerning the amount that is paid 
for orders and which order flow providers receive the payments.
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    \3\ Transactions in Top 120 Options that are excepted from the 
$1.00 fee are transactions between: (1) A specialist and an ROT; (2) 
an ROT and an ROT; (3) a specialist and a firm; (4) an ROT and a 
firm; (5) a specialist and a broker-dealer; and (6) an ROT and a 
broker-dealer. See Securities Exchange Act Release Nos. 43177 (Aug. 
18, 2000), 65 FR 51889 (Aug. 25, 2000) (SR-Phlx-00-77); 43480 (Oct. 
25, 2000), 65 FR 66275 (Nov. 3, 2000) (SR-Phlx-00-86, Phlx-00-87); 
and 43481 (Oct. 25, 2000),), 65 FR 66277 (Nov. 3, 2000) (SR-Phlx-00-
88, SR-Phlx-00-89).
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    The proposed amendment to Rule 760 requires members and member 
organizations that participate in a payment for order flow arrangement 
to keep, among other things, records relating to: (a) The amount of 
fees received; (b) the transfer of those fees; (c) the final transfer 
of those funds to the order flow providers; (d) the names of the order 
flow providers; (e) the amount of payments and whether the amount is on 
a per-contract or flat-fee basis; and (f) any other records relating to 
payment for order flow arrangements.\4\
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    \4\ Some of the records that must be kept and maintained for 
purposes of the payment for order flow program may also fall under 
the recorkeeping provisions of Section 17 of the Act and Rules 17a-3 
and 17a-4 thereunder. State and federal tax law and other applicable 
laws may also require the maintenance of those records.
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    The Phlx believes that the proposed rule change will give Phlx 
members and member organizations more specific guidance concerning 
their obligations to maintain records relating to payment for order 
flow arrangements. The Phlx believes that this, in turn, should help 
the Phlx to review and verify, if necessary, that the funds collected 
for order flow purposes are not put to improper use.\5\ It is the 
Phlx's belief that the proposed amendment to Rule 760 will emphasize 
the importance of recordkeeping duties with respect to payment for 
order flow, encourage compliance by the membership, and ensure the 
proper administration of the payment for order flow program as a whole.
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    \5\ In order to facilitate review and verification, the records 
should be maintained in such a fashion as to permit the Phlx to 
track payments to various order flow providers on an option-by-
option basis, and to view all payments made to each order flow 
provider.
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    The proposed amendment to Phlx Rule 760 does not enable the Phlx to 
become involved directly or indirectly in the decisions of members or 
member organizations regarding which order flow providers should be 
paid, which options they should be paid for, or how much should be paid 
to order flow providers individually or collectively. Those decisions 
are committed exclusively to the specialists.
    The Phlx believes that the proposed rule change will assist its 
efforts to enforce compliance with the rules governing its payment for 
order flow program consistent with Section 6(b) \6\ of the Act, 
particularly subsection 6(b)(1),\7\ and will promote just and equitable 
principles of trade consistent with subsection 6(b)(5).\8\
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(1).
    \8\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Phlx does not believe that the proposed rule change will impose 
any inappropriate burden on competition.

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

    The Phlx neither solicited nor received any comments.

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 
might 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 Phlx consents, the Commission will:
    (a) by order approve such proposed rule change, or

[[Page 17592]]

    (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, 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 in the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
Phlx. All submissions should refer to File No. SR-Phlx-01-08 and should 
be submitted April 23, 2001.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. 01-8026 Filed 3-30-01; 8:45 am]
BILLING CODE 8010-01-M