[Federal Register Volume 68, Number 96 (Monday, May 19, 2003)]
[Notices]
[Pages 27126-27128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12453]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47830; File No. SR-NASD-2003-37]


Self-Regulatory Organizations; Order Granting Approval to 
Proposed Rule Change and Amendment No. 1 Thereto by the National 
Association of Securities Dealers, Inc. to Permanently Expand Order 
Entry Firm Access to SIZE in Nasdaq's SuperMontage System

May 12, 2003.

I. Introduction

    On March 12, 2003, the National Association of Securities Dealers, 
Inc. (``NASD''), through its subsidiary, the Nasdaq Stock Market, Inc. 
(``Nasdaq''), filed with the Securities and Exchange Commission 
(``SEC'' or ``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 for the permanent approval of a 
pilot program which permits NNMS Order Entry Firms (``OE Firms'') to 
enter non-marketable limit orders into SuperMontage using the SIZE 
Marker Maker Identifier (``SIZE MMID'' or ``SIZE'').\3\ On March 26, 
2003, Nasdaq filed Amendment No. 1 to the proposed rule change.\4\ The 
proposed rule change, as amended, was published for comment in the 
Federal Register on April 3, 2003.\5\ The Commission received three 
comment letters regarding the pilot as originally approved,\6\ and the 
instant proposal, as amended.\7\ On May, 2, 2003, Nasdaq submitted a 
comment response letter.\8\ This order approves the proposed rule 
change, as amended.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On January 31, 2003, the Commission approved File No. SR-
NASD-2002-173 on a 90-day pilot basis, which allowed OE Firms to 
enter non-marketable limit orders into Nasdaq's SuperMontage system 
using SIZE. See Securities Exchange Act Release No. 47301 (January 
31, 2003), 68 FR 6236 (February 6, 2003). The 90-day pilot commenced 
on February 10, 2003. This filing seeks to make permanent the 
ability of OE Firms to enter orders into SuperMontage under 
essentially the same terms and conditions approved in the pilot 
program.
    \4\ See letter from Thomas Moran, Office of General Counsel, 
Nasdaq, to Katherine A. England, Assistant Director, Division of 
Market Regulation (``Division''), Commission, dated March 25, 2003.
    \5\ See Securities Exchange Act Release No. 47588 (March 28, 
2003), 68 FR 16323.
    \6\ See Securities Exchange Act Release No. 47301 (January 31, 
2003), 68 FR 6236 (February 6, 2003).
    \7\ See letters to Jonathan G. Katz, Secretary, Commission, from 
S. Jeffrey Martin, President, Automated Trading Desk Financial 
Services, LLC, and Steve Swanson, President, Automated Trading 
Brokerage Services, LLC, dated February 27, 2003 and March 6, 2003 
(``ATD Letter''); from Duncan L. Niederauer, Managing Director and 
Co-Chief Executive Officer, Spear, Leeds & Kellogg, L.P., dated May 
1, 2003 (``SLK Letter''); and from John Hughes, Chairman, and John 
C. Giesea, President and Chief Executive Officer, Security Traders 
Association, dated April 9, 2003 (``STA Letter''). The two comment 
letters from ATD appear to be identical and, therefore, are being 
treated as one comment letter.
    \8\ See letter from Thomas P. Moran, Office of General Counsel, 
Nasdaq, to Katherine A. England, Assistant Director, Division, 
Commission, dated May 1, 2003 (``Response Letter'').
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    As noted above, this filing seeks the permanent approval of the 90-
day pilot program that allows OE Firms \9\ to enter non-marketable 
limit orders into SuperMontage using SIZE. Under the proposal, OE Firms 
may voluntarily enter non-marketable limit orders into SuperMontage 
with a Good-till-Cancelled (``GTC'') or ``Day'' designation for display 
or execution through SIZE.\10\ OE Firms may enter multiple orders (with 
or without reserve size) at single or multiple price levels, use any 
available execution algorithm (price/time, price/time-with-fee-
consideration, or price/size). Non-marketable limit orders entered by 
OE Firms would be subject to the automatic execution functionality of 
the system. If elected by the OE Firm, its orders on opposite sides of 
the market could match off against each other only if such

[[Page 27127]]

interaction would result based on the execution algorithm selected, 
\11\ but such orders would not be permitted to automatically interact, 
if at the best price level, like those of Nasdaq Quoting Market 
Participants.\12\ Alternatively, OE Firms may elect to completely avoid 
interaction with its orders on the opposite side of the market.\13\ 
Quotes/Orders entered by OE Firms that create a locked/crossed market, 
would be processed like other locking/crossing quotes/orders as set 
forth in NASD Rule 4710(b)(3).
---------------------------------------------------------------------------

    \9\ Nasdaq submitted a letter to clarify that it interprets the 
term ``NNMS Order Entry Firm'' in a manner that may encompass NNMS 
Market Makers that are registered market makers in other stocks. In 
the SuperMontage system, such firms are treated the same as other OE 
Firms when placing orders into the system for stocks in which they 
do not make a market. Nasdaq notes that the provision of order-entry 
system access to firms that elect to register as market makers in 
less than the total universe of Nasdaq stocks also took place in the 
systems preceding SuperMontage--SelectNet and SuperSoes. See letter 
from Thomas P. Moran, Office of General Counsel, Nasdaq, to Marc 
McKayle, Special Counsel, Division, Commission, dated May 8, 2003.
    \10\ Prior to the pilot, OE Firms were limited to the entry of 
market orders or limited orders designated as Immediate or Cancel 
(``IOC''). OE Firms may continue to submit IOC orders under the 
proposal.
    \11\ See Securities Exchange Release Act No. 47554 (March 21, 
2003), 68 FR 15024 (March 27, 2003) (Notice of Filing and Immediate 
Effectiveness of SR-NASD-2003-39).
    \12\ Similarly, OE Firms would not be able to use SuperMontage's 
self-preferencing feature and have buy and sell interest interact on 
a basis other than a natural interaction based solely on the 
selected order execution algorithm.
    \13\ See supra note 11.
---------------------------------------------------------------------------

III. Summary of Comments and Nasdaq's Response

    As noted above, the Commission received three comment letters 
regarding the proposal, as amended.\14\ Two of the commenters strongly 
supported the proposed rule change, as amended.\15\ These commenters 
believed that allowing OE Firms to participate in SIZE enhances the 
liquidity of SuperMontage by promoting the entry and display of market 
interest by a greater number of market participants.\16\ In addition, 
both of these commenters believe that OE Firms' participation in SIZE 
reduces the fragmentation in the Nasdaq market attributable to the 
absence of linkages between the NASD Alternative Display Facility, the 
regional exchanges trading Nasdaq securities pursuant to unlisted 
trading privileges, and SuperMontage. As a result, one of the 
commenters believed that the ability of OE Firms to use SIZE could 
reduce the existence of locked/crossed markets.\17\ Further, the 
commenters stated that providing OE Firms with direct participation in 
SIZE decreases the execution times for customer orders by eliminating 
the need to interpose an electronic communications network (``ECN'') or 
market maker between the OE Firm and SuperMontage,\18\ as well as 
credits firms for providing liquidity through SIZE.\19\ Finally, the 
two commenters generally believed that the proposed rule change 
provides all market participants with a more equal opportunity to 
interact with other market participants including market makers and 
other agency orders via SIZE.
---------------------------------------------------------------------------

    \14\ See supra note 7.
    \15\ See ATD Letter and SLK Letter.
    \16\ See ATD Letter and SLK Letter.
    \17\ See ATD Letter.
    \18\ See SLK Letter.
    \19\ See ATD Letter.
---------------------------------------------------------------------------

    Another commenter, however, described the proposed rule change as a 
significant market structure change, and suggested that Nasdaq's 
proposal be subject to additional review.\20\ Specifically, the 
commenter opined that because of the complexity of the proposal and the 
resources required to implement it, the 90 days for a pilot program of 
this nature was too short a period for full evaluation and 
implementation by market participants. The commenter recommended that 
the pilot program be extended an additional 90 days to give OE Firms 
sufficient time and resources to adapt their systems and procedures to 
take advantage of the enhanced access provided by the proposed rule 
change. The commenter opined that the extension of time would allow the 
NASD and the Commission to thoroughly analyze the effect of the 
proposed rule change on the marketplace prior to enacting it as a 
permanent change to SuperMontage.
---------------------------------------------------------------------------

    \20\ See STA Letter. The STA also asserted that the pilot should 
not have been approved on an accelerated basis.
---------------------------------------------------------------------------

    Nasdaq disagreed with the STA's characterization that the proposal 
was a significant market structure change that warranted additional 
consideration by the Commission.\21\ According to Nasdaq, since the 
pilot's inception, the use of SIZE for non-marketable limit orders 
submitted by pure OE Firms, and by market makers registered in other 
stocks, has modestly but steadily increased.\22\ Nasdaq also stated the 
expansion has had no apparent negative impact on public investors and 
has served to bring increased liquidity to the public Nasdaq market. 
Nasdaq believes that these measurable improvements should take 
precedence, in the form of a swift and permanent approval of the 
proposed rule change, over any potential problems with the pilot that 
have yet to become manifest. Nasdaq also noted that the concept of the 
proposal is similar to the access granted to registered brokers in 
other market centers, whose experience gives no indication that such 
access has had an adverse impact on market quality.
---------------------------------------------------------------------------

    \21\ See Response Letter, supra note .
    \22\ Nasdaq represents that a recent internal analysis conducted 
by Nasdaq's Economic Research Department on the use of SIZE during 
the pilot indicates an increase of approximately 1.5% of total 
Nasdaq volume is now being executed through SIZE. OE Firms currently 
represent about \1/3\ of the total trading interest being executed 
through SIZE. Since the launch of the pilot, the number of OE Firms 
participating in SuperMontage via non-marketable limit orders in 
SIZE has increased from 0 to roughly 35 firms during the week of 
April 7, 2003.
---------------------------------------------------------------------------

IV. Discussion

    After careful review of the proposed rule change, the comment 
letters, and Nasdaq's response to comments, the Commission finds that 
the proposed rule change, as amended, is consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to a national securities association.\23\ Specifically, the 
Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of Section 15A of the Act in 
general,\24\ and Section 15A(b)(6) of the Act in particular,\25\ which 
provides that the rules of the association be designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principals of trade, to foster cooperation and coordination 
with person 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.
---------------------------------------------------------------------------

    \23\ 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).
    \24\ 15 U.S.C. 78o-3.
    \25\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    The Commission believes that it is appropriate to permanently 
approve the pilot. As noted by two of the commenters and Nasdaq, the 
implementation of the pilot has provided OE Firms with greater access 
to the system thereby increasing the liquidity of SuperMontage and 
potentially reducing fragmentation. Further, the Commission is not 
aware of any problems concerning the pilot since its inception on 
February 10, 2003.\26\
---------------------------------------------------------------------------

    \26\ The STA commented that the NASD was not obligated to modify 
SuperMontage to allow expanded OE Firm access until April 28, 2003. 
The Commission notes that by April 28, 2003, or an earlier date 
determined by Nasdaq with appropriate notice for the Commission and 
market participants, Nasdaq was required to have a programming 
solution in place to inhibit the automatic matching of an OE Firm 
order against its own order on the opposite side of the market. The 
pilot allowing OE Firms access to SIZE began on February 10, 2003. 
The programming solution to inhibit the automatic matching of OE 
Firm orders was implemented on March 17, 2003. See letter from 
Jeffrey Davis, Office of General Counsel, Nasdaq, to Katherine A. 
England, Assistant Director, Division, Commission, dated February 
25, 2003.
---------------------------------------------------------------------------

    Also, as previously discussed in the pilot approval order, the 
Commission believes that the proposal is consistent with the goals of 
Section 11A(a)(1)(C), particularly Congress' finding that it is

[[Page 27128]]

in the public interest and appropriate for the protection of investors 
and the maintenance of fair and orderly market to assure the 
economically efficient execution of securities transactions. The 
Commission believes that permanent approval of the proposal would 
continue to provide OE Firms with greater flexibility to reflect buying 
and selling interest at various price levels by entering Non-
Attributable Orders directly into SuperMontage, instead of relying on 
ECNs and NNMS Market Makers to post their trading interest.
    The Commission notes that STA suggested that the pilot be extended 
for an additional 90 days to provide the Commission as well as other 
market participants greater opportunity to study the potential impact 
of the pilot. However, Nasdaq represented that there has been no 
apparent negative market impact on public investors during the pilot, 
and in fact, the pilot has proven to be a catalyst for additional 
liquidity in SuperMontage. Further, the Commission notes that the pilot 
has been in place since February 10, 2003, that 35 OE Firms are 
currently participating in the pilot, and that the Commission is not 
aware of any problems with the pilot. Accordingly, the Commission does 
not believe that an extension of the pilot program is warranted in lieu 
of granting permanent approval.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\27\ that the proposed rule change and Amendment No. 1 (SR-NASD-
2003-37) be, and it hereby is, approved.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\28\
---------------------------------------------------------------------------

    \28\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-12453 Filed 5-16-03; 8:45 am]
BILLING CODE 8010-01-P