[Federal Register Volume 68, Number 34 (Thursday, February 20, 2003)]
[Notices]
[Pages 8318-8319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4044]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47353; File No. SR-NYSE-2002-58]


Self-Regulatory Organizations; New York Stock Exchange; Order 
Approving Proposed Rule Change by New York Stock Exchange To Amend the 
Exchange's Automatic Execution Facility (NYSE Direct+)

February 12, 2003.
    On November 1, 2002, the New York Stock Exchange (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to amend NYSE Rule 1005 to permit entry of limit 
orders up to 1,099 shares within 30 seconds for an account in which the 
same person has an interest, provided that the orders are entered from 
different terminals and that the member or member organization 
responsible for the entry of the orders to the trading floor 
(``Floor'') has procedures to monitor compliance with the separate 
terminal requirement. On December 10, 2002, the rule proposal was 
published for comment in the Federal Register.\3\ The Commission 
received 103 comments generally in favor of the proposed rule change. 
This order approves the proposed rule.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 46943 (December 4, 
2002), 67 FR 75893.
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I. Description of the Proposed Rule Change

    The NYSE Direct+ pilot \4\ provides for the automatic execution of 
limit orders of 1099 shares or less (known as an ``NX order'' or auto 
ex order) against trading interest reflected in the Exchange's 
published quotation. It is not mandatory that all limit orders of 1099 
shares be entered as NX orders; rather, the member organization 
entering the order, or its customer if enabled by the member 
organization, can choose to enter an NX order when such member 
organization (or customer) believes that the speed and certainty of an 
execution at the Exchange's published bid or offer price is in its 
customer's best interest.
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    \4\ See Securities Exchange Act Release No. 43767 (December 22, 
2000), 66 FR 834 (January 4, 2001) (SR-NYSE-2000-18) (approving the 
NYSE Direct + pilot). The one-year pilot was subsequently extended 
for another year in Securities Exchange Act Release No. 45331 
(January 24, 2002), 67 FR 5024 (February 1, 2002) (SR-NYSE-2001-50). 
The pilot was recently extended through December 23, 2003. See 
Securities Exchange Act Release No. 46906 (November 25, 2002) 67 FR 
72260 (December 4, 2002) (SR-NYSE-2002-47). The proposed rule 
change, if approved, would be part of the pilot and, thus, would 
expire on December 23, 2003 unless extended. Telephone conversation 
between Donald Siemer, Director, Market Surveillance, NYSE, and 
Sonia Patton, Special Counsel, Division of Market Regulation, 
Commission, December 3, 2002.
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    NYSE Rule 1005 currently provides that an NX order for any account 
in which the same person is directly or indirectly interested may only 
be entered at 30 second intervals. The restriction against the same 
customer entering an order within 30 seconds focuses on the identity of 
the ultimate beneficial owner of an account. Thus, an order cannot be 
entered for the same beneficial owner within 30 seconds. According to 
the NYSE, the purpose of this restriction is to limit the ability of a 
trader to circumvent the restriction on order size by breaking a large 
order into smaller components and repetitively entering them to exhaust 
liquidity at the published bid or offer price. The restriction in NYSE 
Rule 1005 applies across an entire firm, even if separate traders are 
making independent decisions with respect to an account in which the 
firm has an interest.
    The Exchange is proposing to amend NYSE Rule 1005 to permit entry 
of NX orders within 30 seconds for an account in which the same person 
has an interest, provided that the orders are entered from different 
terminals and that the member or member organization responsible for 
the entry of the orders to the Floor has procedures to monitor 
compliance with the separate terminal requirement. Such procedures, at 
a minimum, must require member organization compliance departments to 
review patterns of order entry from individual terminals on a periodic 
basis to ensure compliance with the 30 second requirement.

I. Summary of Comments

    The Commission received 103 comment letters generally supporting 
the proposed amendment to NYSE Direct +.\5\ Many commenters stated that

[[Page 8319]]

proposed rule change would level the playing field between large and 
small firms \6\ and allow greater access to the NYSE floor.\7\ 
Specifically, one commenter noted that ``[w]hile larger firms have NYSE 
floor brokers and hence direct access to the liquidity of the market 
and exposure to block orders, smaller firms must rely on the DOT system 
and Direct Plus.''\8\ Commenters also stated that the proposal would 
provide greater transparency and liquidity in the market place.\9\ 
Other comments stated that the proposed amendment would increase speed 
of executions.\10\ Finally, many commenters stated that traders at a 
firm who make independent decisions should not be considered to be 
``one firm'' for purposes of complying with the 30 second restriction 
in NYSE Rule 1005.\11\
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    \5\ A number of letters were from registered representatives and 
registered principals of Heartland Securities. These letters are 
identified individually. See letters to Jonathan G. Katz, Secretary, 
Commission, from Christopher Andrews, dated November 19, 2002 
(``Andrews Letter''); Christopher Ball, undated (``Ball Letter''); 
Dror Ben-Aharon, undated (``Ben-Aharon Letter''); Alexander Benetti, 
dated November 19, 2002 (``Benetti Letter''); Patrick K. Blackburn, 
Executive Vice President, ABN-AMRO, dated December 23, 2002 (``ABN-
AMRO Letter''); Eliav Bock, dated November 19, 2002 (``Bock 
Letter''); Arthur Brachowski, dated November 20, 2002 (``Brachowski 
Letter''); Thomas Bradshaw, undated (``Bradshaw Letter''); Blake C. 
Byczek, dated November 19, 2002 (``Byczek Letter''); Richard 
Cammarata, undated (``Cammarata Letter''); Coreina Chan, dated 
November 19, 2002 (``Chan Letter ''); Jireh Chao, Jr., undated 
(``Chao, Jr. Letter''); Jake Chun, undated (``Chun Letter''); Robert 
Cope, dated November 19, 2002 (``Cope Letter''); Daniel J. Cosenza, 
dated November 19, 2002 (``Cosenza Letter''); Dario Cosic, dated 
November 19, 2002 (``Cosic Letter''); Jay Crosby, undated (``Crosby 
Letter''); Glen Cutler, undated (``Cutler Letter''); Francis B. 
DeLuca, undated (``Deluca Letter''); Brian Dershow, dated November 
19, 2002 (``Dershow Letter''); Timothy K. Dolnier, undated 
(``Dolnier Letter''); David Dondero, undated (``Dondero Letter''); 
Michael Elmes, undated (``Elmes Letter''); Michael Elzahr, dated 
November 20, 2002 (``Elzhar Letter''); Tolga Erman, undated (``Erman 
Letter''); Michael Feeney, undated (``Feeney Letter''); Chris 
Freddo, undated (``Freddo Letter''); Elizabeth Goldstein, dated 
November 19, 2002 (``Goldstein Letter''); Jeff Gregario, undated 
(``Gregario Letter''); Cary S. Grill, dated November 19, 2002 
(``Grill Letter''); Brian Gutbrod, undated (``Gutbrod Letter''); 
Charles William Hansford, dated November 19, 2002 (``Hansford 
Letter''); Zachary Hepner, November 18, 2002 (``Hepner Letter''); 
James Hochleutner, undated (``Hochleutner Letter''); Jonathan W. 
Hodges, dated November 20, 2002 (``Hodges Letter''); Edward E. Hong, 
undated (``Hong Letter''); Bradford O. Hotchkiss, dated November 18, 
2002 (``Hotchkiss Letter''); Brian Ingram, dated November 20, 2002 
(``Ingram Letter''); Aaron Israel, undated (``Israel Letter''); 
Jeremy Ives, dated November 19, 2002 (``Ives Letter''); Kevin Jahng, 
dated November 19, 2002 (``Jahng Letter''); Joel Jones, undated 
(``Jones Letter''); Matthew Keegan, dated November 19, 2002 
(``Keegan Letter''); John Kernan, undated (``Kernan Letter''); 
Saeyoon Kim, dated November 19, 2002 (``Kim Letter''); Keith 
Kirstein, dated November 19, 2002 (``Kirstein Letter''); Gregory 
Kleiman, undated (``Kleiman Letter''); Eric P. Knight, undated 
(``Knight Letter''); David Kobin, dated November 18, 2002 (``Kobin 
Letter''); Aaron Kravitz, dated November 19, 2002 (``Kravitz 
Letter''); Ira Landsman, dated November 19, 2002 (``Landsman 
Letter''); Richard Lay, dated November 19, 2002 (``Lay Letter''); 
Samson Leung, undated (``Leung Letter''); Bronson C. Lingamfelter, 
undated (``Lingamfelter Letter''); Alex J. Lopez, undated (``Lopez 
Letter''); Michael Lucarello, undated (``Lucarello Letter''); Eugene 
Lum, dated November 19, 2002 (``Lum Letter''); Richard Lutz, undated 
(``Lutz Letter''); Jefferson Magat, dated November 19, 2002 (``Magat 
Letter''); Dax L. Mathews, dated November 19, 2002 (``Mathews 
Letter''); Kevin Medvin, (``Medvin Letter''); Robert Merrill, dated 
November 19, 2002 (``Merrill Letter''); Marc Miller, dated November 
18, 2002 (``Miller Letter''); John J. Morgan, dated November 20, 
2002 (``Morgan Letter''); Angelo Nicoletta, dated November 19, 2002 
(``Nicoletta Letter''); Charles Nierling, dated November 19, 2002 
(``Nierling Letter''); Michael O'Malley, dated November 20, 2002 
(``O'Malley Letter''); Robert L. Oliver, Jr., November 17, 2002 
(``Oliver, Jr. Letter''); Chris M. Paper, undated (``Paper 
Letter''); Boris Piskun, dated November 19, 2002 (``Piskun 
Letter''); Tal Plotkin, dated November 20, 2002 (``Plotkin 
Letter''); Frank Raffaele, dated November 18, 2002 (``F. Raffaele 
Letter''); John J. Raffaele, dated November 18, 2002 (``J. Raffaele 
Letter''); Richard Rebatta, dated November 18, 2002 (``Rebatta 
Letter''); John Schmidt, dated November 18, 2002 (``Schmidt 
Letter''); Matthew Schroeder, November 19, 2002 (``Schroeder 
Letter''); Jonathan Schuldenfrei, dated November 20, 2002 
(``Schuldenfrei Letter''); David Schwarz, dated November 18, 2002 
(``Schwarz Letter''); Drew Aaron Segal, dated November 19, 2002 
(``Segal Letter''); Sinan Selcuk, dated November 19, 2002 (``Selcuk 
Letter''); Tal Sharon, dated November 20, 2002 (``Sharon Letter''); 
Theodore Siegel, dated November 20, 2002 (``Siegel Letter''); Dan 
Solomon, dated November 20, 2002 (``Solomon Letter''); Douglas Song, 
dated November 19, 2002 (``Song Letter''); Doug Squires, dated 
November 19, 2002 (``Squires Letter''); Igor Stancevic, dated 
November 19, 2002 (``Stancevic Letter''); Joe Tan, dated November 
20, 2002 (``Joe Letter''); Howard Teitelman, dated November 19, 2002 
(``Teitelman Letter''); Harlan Thompson, undated (``Thomson 
Letter''); Richard J. Travers III, dated November 19, 2002 
(``Travers III Letter''); Michael W. Vaughn, dated November 19, 2002 
(``Vaughn Letter''); Isaak Volodarsky, dated November 19, 2002 
(``Volodarsky Letter''); Eric Walania, dated November 20, 2002 
(``Walania Letter''); Alexander Wang, dated November 20, 2002 
(``Wang Letter''); Sean Ward, dated November 19, 2002 (``Ward 
Letter''); Matthew Weinshall, dated November 20, 2002 (``Weinshall 
Letter''); Joshua Weitnraub, dated November 19, 2002 (``Weintraub 
Letter''); Scott Westrick, dated November 19, 2002 (``Westrick 
Letter''); Travis P. Whitten, undated (``Whitten Letter''); Jimmie 
E. Williams, dated November 19, 2002 (``Williams Letter''); Kevin 
Yang, dated November 20, 2002 (``Yang Letter''); Paul Yiacas, 
undated (``Yiacas Letter''); and Daniel You, dated November 19, 2002 
(``You Letter'').
    \6\ See e.g., Solomon Letter; Landsman Letter; Sharon Letter; 
Knight Letter; Jahng Letter; Hochleutner Letter; Chao, Jr. Letter; 
Dershow Letter; Cammarata Letter; Cosenza Letter; and Weinshall 
Letter.
    \7\ See e.g., Chan Letter; J. Raffaele Letter; Volodarsky 
Letter; Plotkin Letter; Erman Letter; and Tan Letter.
    \8\ See Weinshall Letter.
    \9\ See e.g., Feeney Letter; Squires Letter; Stancevic Letter; 
Miller Letter; Vaughn Letter; Paper Letter; and Whitten Letter.
    \10\ See e.g., Jones Letter; Piskun Letter; Cosic Letter; 
Schroeder Letter; Westrick Letter; and Freddo Letter.
    \11\ See e.g., Selcuk Letter; Kravitz Letter; Lay Letter; 
Dolnier Letter; and Elzahr Letter.
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III. Discussion

    After careful review, 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.\12\ Specifically, the Commission believes the proposed rule 
change is consistent with section 6(b)(5) of the Act,\13\ which 
requires among other things, that the rules of the Exchange are 
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 perfect the 
mechanism of a free and open market and national market system, and in 
general to protect investors and the public interest. The Commission 
believes that the proposed rule change is a reasonable expansion of the 
Direct + pilot and should allow individual traders greater flexibility 
and access to the trading interest reflected in the Exchange's 
published quotation. In addition, the Commission believes that the 
separate terminal requirement should help to ensure that traders are 
not circumventing the restriction on order size. The Commission notes 
that the Exchange has represented that it will surveil for compliance 
with this requirement when conducting periodic reviews of member 
organizations.
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    \12\ The Commission has considered the proposed rule's impact on 
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
    \13\ 15 U.S.C. 78f(b)(5).
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IV. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\14\ that the proposed rule change (SR-NYSE-2002-58) is approved.
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    \14\ Id.
    \15\ 17 CFR 200.30-3(a)(12).


    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\15\
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-4044 Filed 2-19-03; 8:45 am]
BILLING CODE 8010-01-P