[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Notices]
[Pages 2378-2379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-949]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47153; File No. SR-Amex-2002-117]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval to Proposed Rule Change by the American 
Stock Exchange LLC To Extend for an Additional 90 Days Its Pilot 
Program Relating to Facilitation Cross Transactions

January 10, 2003.
    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 30, 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 and 
II below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons. For the reasons discussed 
below, the Commission is granting accelerated approval of the proposed 
rule change.
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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 Amex proposes to extend for an additional 90 days its pilot 
program relating to facilitation cross transactions, described in Item 
II.A. below. The text of the proposed rule change is available at the 
Office of the Secretary, Amex, 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 Amex 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 III 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
    The Exchange proposes to extend for an additional 90 days its pilot 
program relating to member firm facilitation cross transactions, which 
was originally approved by the Commission in June 2000, was most 
recently extended on October 9, 2002, and is due to expire on January 
7, 2003.\3\
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    \3\ The pilot program, originally approved on June 2, 2000, was 
subsequently extended on two occasions, reinstated after a brief 
lapse in July 2001, extended again in October 2001, January, April, 
July and October 2002. See Securities Exchange Act Release Nos. 
42894 (June 2, 2000), 65 FR 36850 (June 12, 2000), 43229 (August 30, 
2000), 65 FR 54572 (September 8, 2000); 44019 (February 28, 2001), 
66 FR 13819 (March 7, 2001); 44538 (July 11, 2001), 66 FR 37507 
(July 18, 2001); 44924 (October 11, 2001), 66 FR 53456 (October 22, 
2001); 45241 (January 7, 2002), 67 FR 1524 (January 11, 2002); 45703 
(April 8, 2002), 67 FR 18272 (April 15, 2002); 46176 (July 9, 2002), 
67 FR 47007 (July 17, 2002); and 46630 (October 9, 2002), 67 FR 
64425 (October 18, 2002).
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    Revised Commentary .02(d) to Amex Rule 950(d) establishes a pilot 
program to allow facilitation cross transactions in equity options.\4\ 
The pilot program entitles a floor broker, under certain conditions, to 
cross a specified percentage of a customer order with a member firm's 
proprietary account before market makers in the crowd can participate 
in the transaction. The provision generally applies to orders of 400 
contracts or more. However, the Exchange is permitted to establish 
smaller eligible order sizes, on a class by class basis, provided that 
the eligible order size is not for fewer than 50 contracts.
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    \4\ Facilitation cross transactions occur when a floor broker 
representing the order of a public customer of a member firm crosses 
that order with a contra side order from the firm's proprietary 
account.
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    Under the current program, when a trade takes place at the market 
provided by the crowd, all public customer orders on the specialist's 
book or represented

[[Page 2379]]

in the trading crowd at the time the market was established must be 
satisfied first. Following satisfaction of any public customer orders, 
the floor broker is entitled to facilitate up to 20% of the contracts 
remaining in the customer order. When a floor broker proposes to 
execute a facilitation cross at a price between the best bid and offer 
provided by the crowd in response to his initial request for a market--
and the crowd then wants to take part or all of the order at the 
improved price--the floor broker is entitled to priority over the crowd 
to facilitate up to 40% of the contracts. If the floor broker has 
proposed the cross at a price between the best bid and offer provided 
by the crowd in response to his initial request for a market, and the 
trading crowd subsequently improves the floor broker's price, and the 
facilitation cross is executed at that improved price, the floor broker 
would only be entitled to priority to facilitate up to 20% of the 
contracts.
    The program also provides that if the facilitation transaction 
takes place at the specialist's quoted bid or offer, any participation 
allocated to the specialist pursuant to Amex trading floor practices 
would apply only to the number of contracts remaining after all public 
customer orders have been filled and the member firm's crossing rights 
have been exercised.\5\ However, in no case could the total number of 
contracts guaranteed to the member firm and the specialist exceed 40% 
of the facilitation transaction.
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    \5\ Amex trading floor practices provide specialists with a 
greater than equal participation in trades that take place at a 
price at which the specialist is on parity with registered options 
traders in the crowd. These practices are subject to a separate 
filing that seeks to codify specialist allocation practices. See 
Securities Exchange Act Release No. 42964 (June 20, 2000), 65 FR 
39972 (June 28, 2000) (File No. SR-Amex-00-30, most recently amended 
on December 20, 2002).
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    In the two and one-half years since the pilot program was first 
implemented, the Exchange has found it to be generally successful. The 
Exchange seeks to extend the pilot program for an additional 90 days, 
pending consideration of a related proposed rule change it has filed 
with the Commission \6\ concerning revisions to the program that the 
Amex believes will provide further incentive for price improvement by 
using different procedures to determine specialist and registered 
option trader participation. The related proposal would also make the 
program permanent.
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    \6\ See File No. SR-Amex-00-49, available for inspection at the 
Commission's Public Reference Room.
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    In order to allow the pilot program to be extended without 
significant interruption, the Amex has requested that the Commission 
expedite review of, and grant accelerated approval to, the proposal to 
extend it, pursuant to section 19(b)(2) of the Act.\7\
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    \7\ 15 U.S.C. 78s(b)(2).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with section 6(b) of the Act \8\ in general, and furthers the 
objectives of section 6(b)(5) of the Act \9\ in particular, in that it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, and is not designed 
to permit unfair discrimination between customers, issuers, brokers or 
dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 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 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. 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 Room. Copies of the filing will also be 
available for inspection and copying at the principal office of the 
Exchange. All submissions should refer to File No. SR-Amex-2002-117 and 
should be submitted by February 6, 2003.

IV. Commission Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange.\10\ In its 
original approval of the pilot program,\11\ the Commission detailed its 
reasons for finding its substantive features consistent with the Act, 
and, in particular, the requirements of sections 6(b)(5) and 6(b)(8) of 
the Act.\12\ The Commission has previously approved rules on other 
exchanges that establish substantially similar programs on a permanent 
basis,\13\ and the extension of the pilot program on the Amex--pending 
review of its related proposal to revise the program and make it 
permanent--raises no new regulatory issues for consideration by the 
Commission.
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    \10\ In approving this proposal, the Commission has considered 
the proposed rule's impact on efficiency, competition, and capital 
formation. 15 U.S.C. 78c(f).
    \11\ See supra, note 3.
    \12\ 15 U.S.C. 78f(b)(5) and (b)(8).
    \13\ See, e.g., Securities Exchange Act Release Nos. 42835 (May 
26, 2000), 65 FR 35683 (June 5, 2000), and 42848 (May 26, 2000), 65 
FR 36206 (June 7, 2000).
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    The Commission finds good cause, consistent with sections 6(b) and 
19(b)(2) of the Act, for approving the proposed rule change prior to 
the thirtieth day after the date of publication of the notice of filing 
thereof in the Federal Register. The proposal will extend the pilot 
program without interruption while revisions are considered, and does 
not raise any new regulatory issues.
    It is therefore ordered, pursuant to section 19(b)(2) of the Act, 
that the proposed rule change (SR-Amex-2002-117) be, and hereby is, 
approved on an accelerated basis as a pilot program through April 7, 
2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-949 Filed 1-15-03; 8:45 am]
BILLING CODE 8010-01-P