[Federal Register Volume 68, Number 3 (Monday, January 6, 2003)]
[Notices]
[Pages 592-595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-182]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47105; File No. SR-Amex-2002-99]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the American Stock Exchange 
LLC Relating to a Six-Month Extension of the Exchange's Pilot Program 
for Automatic Execution of Orders for Exchange Traded Funds

December 30, 2002.
    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 4, 2002, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. The 
proposed rule change has been filed by the Amex as a ``non-
controversial'' rule change under Rule 19b-4(f)(6) under the Act.\3\ 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Amex seeks a six-month extension of Amex Rule 128A to continue 
its pilot program for the automatic execution of orders for Exchange 
Traded Funds (``ETFs''), with certain modifications as described below. 
Proposed changes to the text of Rule 128A are set forth below.\4\ New 
text is in italics. Deleted text is in brackets.
---------------------------------------------------------------------------

    \4\ The Commentary to Rule 128A, providing details of the pilot 
program that are summarized in Section II of this notice, will 
remain unchanged.
---------------------------------------------------------------------------

Automatic Execution for Exchange Traded Funds

    Rule 128A. The Exchange shall determine the size and other 
parameters of orders eligible for execution by its Automatic Execution 
System (Auto-Ex). An Auto-Ex eligible order for any account in which 
the same person is directly or indirectly interested may only be 
entered at intervals of no less than 10 [30] seconds between entry of 
each such order on the same side of the market in a security. Members 
and member organizations are responsible for establishing procedures to 
prevent orders in a security on the same side of the market for any 
account in which the same person is directly or indirectly interested 
from being entered at intervals of less than 10 [30] seconds.
* * * * *

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 parts of such 
statements.

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

1. Purpose
    On June 19, 2001, the Commission approved the Exchange's proposal, 
adopted as Amex Rule 128A, to permit the automatic execution of orders 
for ETFs on a six-month pilot program basis.\5\ Since that time, the 
Exchange has extended the pilot program twice, in December 2001 and 
June 2002, each time for six months.\6\ The Exchange now seeks to 
extend the pilot program, with certain modifications, for an additional 
six months.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 44449 (June 19, 
2001), 66 FR 33724 (June 25, 2001) (``June 2001 Release'') 
(approving File No. SR-Amex-2001-29).
    \6\ See Securities Exchange Act Release Nos. 45176 (December 20, 
2001), 66 FR 67582 (December 31, 2001) and 46085 (June 17, 2002) 67 
FR 42836 (June 25, 2002) (notices of filing and immediate 
effectiveness of File Nos. SR-Amex-2001-105 and SR-Amex-2002-42, 
respectively).
---------------------------------------------------------------------------

    Since 1986, the Exchange has had an automatic order execution 
feature (``Auto-Ex'') for eligible orders in listed options. The 
Chicago Board Options Exchange, Philadelphia Stock Exchange, and 
Pacific Exchange established similar automatic option order execution 
features at about the same time as the Amex, and the newest options 
exchange, the International Securities Exchange, also features 
automatic order execution. Auto-Ex,

[[Page 593]]

accordingly, has been a standard feature of the options markets for a 
number of years.
    In 1993, the Amex commenced trading Standard and Poor's Depositary 
Receipts[reg] (``SPDRs[reg]''), the first ETF to 
be listed and traded on the Exchange. ETFs are individual securities 
that represent a fractional, undivided interest in a portfolio of 
securities. Currently, more than 100 ETFs are listed on the Amex. Like 
an option, an ETF is a derivative security, and, according to the Amex, 
its price is a function of the value of the portfolio of securities 
underlying the ETF. Thus, as is the case with options, the Exchange 
asserts that it is not the price discovery market for ETFs, and that 
the price discovery market is the market or markets where the 
underlying securities trade.
    The Exchange is now proposing to extend its current Auto-Ex 
technology for an additional six months to ETFs listed under Amex Rules 
1002, 1002A, and 1202. The Amex represents that this will provide 
investors that send eligible orders to the Exchange with faster 
executions than they otherwise would receive. The Exchange believes 
that many investors desire rapid executions in trading securities that 
are priced derivatively since the value of the underlying instruments 
may fluctuate during order processing. The Amex, moreover, will 
continue under the pilot extension to incorporate a price improvement 
algorithm into Auto-Ex for ETFs, thus to provide investors with better 
execution prices on their orders. The price improvement algorithm works 
in the following manner:
    When the Amex establishes the National Best Bid or Offer 
(``NBBO''),\7\ Auto-Ex is programmed to execute eligible incoming ETF 
orders at the APQ plus a programmable number of trading increments with 
respect to the Amex bid, and less a programmable number of trading 
increments in the case of the Amex offer. For example, if the APQ were 
90.10 to 90.20, and the APQ constituted the NBBO, incoming sell orders 
might be automatically executed at 90.12 (the Amex bid plus two ticks) 
and incoming buy orders might be executed at 90.18 (the Amex offer less 
two ticks). If the Amex does not establish the NBBO, Auto-Ex is 
programmed to execute eligible incoming ETF orders at or better than 
the NBBO up to a specified number of trading increments relative to the 
APQ.\8\ Auto-Ex executes an eligible order at the improved price 
relative to the APQ unless such execution would result in a trade-
through with respect to the price of an away market that is a 
participant in the Intermarket Trading System (``ITS''). If a trade 
through would result, the order is routed to the specialist for 
electronic processing through the Amex electronic order book.\9\
---------------------------------------------------------------------------

    \7\ The term ``establish'' as used in this context of Amex Rule 
128A means that the Amex Published Quote (``APQ'') is currently at 
the NBBO, regardless of whether or not the Amex was the first 
exchange to be at that price. See June 2001 Release, supra note.
    \8\ The number of trading increments designated for price 
improvement when the Amex establishes the NBBO may be different than 
the number of increments designated for price improvement when the 
Amex does not establish the NBBO. Id.
    \9\ Once an order that is Auto-Ex eligible is sent to the 
Exchange, the person that initiated the order has no control over 
its execution. This is the case regardless of whether the order is 
executed by Auto-Ex or is executed by the specialist because Auto-Ex 
is unavailable. If the order is routed to the specialist for 
handling because Auto-Ex is unavailable, the specialist does not 
know if the order is for the account of a broker-dealer or for the 
account of a customer. This information is in the Exchange's order 
processing systems and is unavailable to the specialist.
---------------------------------------------------------------------------

    For example, assume that Auto-Ex is programmed to execute the order 
at the Amex bid plus two ticks. If the Amex bid were 90, and an away 
ITS market were bidding 90.01, an incoming sell order would be 
automatically executed on the Amex at 90.02. Continuing with this 
example, if the away market were bidding 90.02, an incoming sell order 
would be automatically executed on the Amex at 90.02 (matching the away 
market). If the away market were bidding 90.03, the incoming sell order 
would not be automatically executed. Instead, it would be routed to the 
specialist for electronic processing through the Amex electronic order 
book.
    The amount of price improvement that the system provides, both when 
the Amex establishes the NBBO and when it does not, is determined by 
the Auto-Ex Enhancements Committee (``Committee'') upon the request of 
a specialist and may differ among ETFs. The Committee consists of the 
Exchange's four Floor Governors and the Chairmen (or their designees) 
of the Specialists Association, Options Market Makers Association, and 
the Floor Brokers Association, respectively. The Exchange anticipates 
that the amount of price improvement will vary among securities based 
upon such factors as the width of the spread, the volatility of the 
basket of securities underlying the ETF, and liquidity of available 
hedging vehicles. The amount of price improvement may be adjusted 
intra-day by the Committee.
    As detailed in Amex Rule 128A, Auto-Ex for ETFs with price 
improvement is unavailable when the spread is at a specified minimum 
and maximum variation, which may be adjusted security to security. The 
Committee will determine, upon the request of a specialist, the minimum 
and maximum spreads at which Auto-Ex is unavailable. As further 
provided in the rule, Auto-Ex is also unavailable with respect to 
incoming sell orders when the Amex bid is for 100 shares, and similarly 
unavailable with respect to incoming buy orders when the Amex offer is 
for 100 shares.
    Orders that are otherwise Auto-Ex eligible orders are also routed 
to the specialist, and not automatically executed, in situations where 
the specialist in conjunction with a Floor Governor or two Floor 
Officials determine that quotes are not reliable and the Exchange is 
experiencing communications or systems problems, ``fast markets,'' or 
delays in the dissemination of quotes. Members and member organizations 
are notified when the Exchange has determined that quotes are not 
reliable prior to disengaging Auto-Ex.
    Specialists and Registered Options Traders (``ROTs'') that sign 
onto the system are automatically allocated the contra side of Auto-Ex 
trades for ETFs. Due to the automatic price improvement feature, the 
specialist and ROTs that sign onto Auto-Ex for ETFs are deemed to be on 
parity for purposes of allocating the contra side of ETF Auto-Ex 
trades. Amex Rule 128A incorporates the following methodology for the 
allocation of the contra side to Auto-Ex ETF trades.

----------------------------------------------------------------------------------------------------------------
                                                                                         Approximate number of
                                                             Approximate number of       trades allocated ROTs
                                                            trades allocated to the      signed on to auto-ex
     Number of ROTs signed on to auto-ex in a crowd        specialist throughout the      throughout the day
                                                            day (``target ratio'')        (``target ratio'')
                                                                   (percent)                   (percent)
----------------------------------------------------------------------------------------------------------------
1.......................................................                         60                          40
2-4.....................................................                         40                          60

[[Page 594]]

 
5-7.....................................................                         30                          70
8-15....................................................                         25                          75
16 or more..............................................                         20                          80
----------------------------------------------------------------------------------------------------------------

    At the start of each trading day, the sequence in which trades are 
to be allocated to the specialist and ROTs signed onto Auto-Ex is 
randomly determined. Auto-Ex trades then are automatically allocated in 
sequence on a rotating basis to the specialist and to the ROTs that 
have signed onto the system so that the specialist and the crowd 
achieve their ``target ratios'' over the course of a trading session. 
If an Auto-Ex eligible order is greater than 100 shares, Auto-Ex 
divides the trade into lots of 100 shares each. Each lot is considered 
a separate trade for purposes of determining target ratios and 
allocating trades within Auto-Ex.
    Round lot orders delivered to the post electronically for 2,000 
shares or less are eligible for Auto-Ex for ETFs. Orders for an account 
in which a market maker in ETFs registered as such on another market 
has an interest are ineligible for Auto-Ex for ETFs. If orders for such 
market makers were eligible for Auto-Ex with price improvement, the 
Exchange represents, Amex specialists and ROTs would be unable to make 
markets with the proposed liquidity for other investors. (Orders for 
Amex Registered Traders are ineligible for Auto-Ex for ETFs pursuant to 
Commentaries .04 and .05 to Rule 111 and Amex Rule 950(c).)
    The Exchange proposes that Amex Rule 128A now stipulate that Auto-
Ex eligible orders for any account in which the same person is directly 
or indirectly interested may be entered only at intervals of 10 seconds 
or more between the entry of each such order in an ETF.\10\ The 
Exchange states that Amex specialists and ROTs are willing to provide 
Auto-Ex with price improvement for orders of a certain size. If persons 
were allowed to enter more than one Auto-Ex eligible order for an 
account in which they had a direct or indirect interest at intervals of 
less than 10 seconds, according to the Exchange, Amex specialists and 
ROTs would be unable to make markets with the proposed liquidity for 
all investors. Under Amex Rule 128A, members and member organizations 
are responsible for establishing procedures to prevent orders for any 
account in which the same person is directly or indirectly interested 
from being entered at intervals of less than 10 seconds with respect to 
an ETF.
---------------------------------------------------------------------------

    \10\ The proposed rule change reduces the interval from 30 
seconds to 10 seconds, as discussed in Section II.C. below.
---------------------------------------------------------------------------

    The specialist may request the Exchange to increase the maximum 
size of Auto-Ex eligible orders. Under Amex Rule 128A, such requests 
are reviewed by the Committee, which approves, disapproves, or 
conditionally approves such requests. The rule directs the Committee to 
balance the interests of investors, the specialist, ROTs in the crowd, 
and the Exchange in determining whether to grant a request to increase 
the size of Auto-Ex eligible orders. The Committee also may consider 
requests from the specialist or ROTs to reduce the size of Auto-Ex 
eligible orders, balancing the same interests that it would consider in 
reviewing a request to increase the size of Auto-Ex eligible orders. 
The Committee is not permitted, however, to reduce the size of Auto-Ex 
eligible orders below 2,000 shares.
    In addition, under Amex Rule 128A, the Committee may delegate its 
authority to one or more Floor Governors. The rule provides, however, 
that the Committee must meet promptly to review a Floor Official's 
decision in the event that a Floor Governor acts pursuant to delegated 
authority.
    Amex Rule 128A further provides that in the event of system 
problems or unusual market conditions, a Floor Governor is permitted to 
reduce the size of Auto-Ex eligible orders below 2,000 shares or 
increase the size of Auto-Ex eligible orders up to 5,000 shares. Any 
such change is temporary and lasts only until the end of the unusual 
market condition or the correction of the system problem. Members and 
member organizations will be notified when the size of Auto-Ex eligible 
orders is adjusted due to system problems or unusual market conditions.
    Amex Rule 128A also provides that the Chairman and Vice Chairman of 
the Exchange, acting jointly, will determine which ETFs are Auto-Ex 
eligible.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act \11\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act \12\ in particular, in that it 
is 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, 
and is not designed to permit unfair discrimination between customers, 
issuers, brokers and dealers.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The proposed rule change will allow the Auto-Ex for ETFs pilot 
program to continue for an additional six months. The proposal also 
facilitates the comparison and settlement of trades since Auto-Ex 
transactions result in ``locked-in'' trades. Auto-Ex for ETFs, 
moreover, automatically provides investors with price improvement on 
their orders.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The Exchange believes the 
proposal, in fact, will enhance competition among markets and market 
makers and thereby benefit investors by allowing the Exchange to 
continue to provide Auto-Ex for ETFs with price improvement.

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

    A member firm submitted a comment letter to the Commission dated 
September 4, 2002, on SR-Amex-2002-42 (the previous extension of the 
Auto-Ex for ETFs Pilot). In this correspondence, the member 
organization objected to the 30-second ``speed bump'' in Rule 128A and 
sought

[[Page 595]]

clarification that the 30-second window applied only to electronic 
orders on the same side of the market in a security. On November 20, 
2002, the Amex Board authorized revisions to Rule 128A to reduce the 
speed bump to 10 seconds (less than the 15 second window that is 
standard at options exchanges) and to clarify that the new, 10 second, 
window only applies to orders on the same side of the market in a 
security. The Exchange believes that it has addressed the concerns 
articulated by the member organization.

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

    The foregoing proposed rule change (1) does not significantly 
affect the protection of investors or the public interest; (2) does not 
impose any significant burden on competition; and (3) by its terms, 
does not become operative until 30 days from the date on which it was 
filed, or such shorter time as the Commission may designate. The 
proposed rule change has therefore become effective pursuant to Section 
19(b)(3)(A) of the Act \13\ and Rule 19b-4(f)(6) thereunder.\14\
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    The Amex has requested that the Commission waive the usual five-day 
notice and 30-day pre-operative waiting periods. The Commission 
believes that it is consistent with the protection of investors and the 
public interest to accelerate the operative date and to waive the five-
day notice period so that the pilot can continue without the 30-day 
delay. Thus, the Commission waives the five-day notice period and 
designates that the proposal become operative immediately.\15\ The 
pilot extension will expire June 19, 2003.
---------------------------------------------------------------------------

    \15\ For purposes only of accelerating the operative date of 
this proposal, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of this proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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 in the 
Commission's Public Reference Section. Copies of such filing will also 
be available for inspection and copying at the principal office of the 
Amex. All submissions should refer to File No. SR-Amex-2002-99 and 
should be submitted by January 27, 2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

    \17\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-182 Filed 1-3-03; 8:45 am]
BILLING CODE 8010-01-P