[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40690-40695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15190]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49921; File No. SR-Amex-2004-04]


Self-Regulatory Organizations; American Stock Exchange LLC; Order 
Approving Proposed Rule Change and Amendment Nos. 1, 2, and 3 thereto 
Relating to Auto-Ex for Exchange Traded Funds and Nasdaq Securities 
Traded on an Unlisted Basis

June 25, 2004.
    On January 20, 2004, the American Stock Exchange LLC (``Amex'' 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 revise its automatic execution (``Auto-Ex'') 
procedures for Portfolio Depository Receipts, Index Fund Shares, Trust 
Issued Receipts (collectively referred to as ``Exchange Traded Funds'' 
or ``ETFs''), and Nasdaq securities admitted to trading on an unlisted 
basis. On March 4, 2004, the Amex amended the proposed rule change.\3\ 
On March 11, 2004, the Amex amended the proposed rule change.\4\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from William Floyd-Jones, Associate General 
Counsel, Amex, to Nancy Sanow, Assistant Director, Office of Market 
Supervision (``OMS''), Commission, dated March 3, 2004 (``Amendment 
No. 1''). In Amendment No. 1, the Amex restated the proposed rule 
change in its entirety.
    \4\ See letter from William Floyd-Jones, Associate General 
Counsel, Amex, to Nancy Sanow, Assistant Director, OMS, Commission, 
dated March 11, 2004 (``Amendment No. 2''). In Amendment No. 2, the 
Amex restated the proposed rule change in its entirety.
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    The proposed rule change and Amendment Nos. 1 and 2 were published 
for comment in the Federal Register on March 25, 2004.\5\ The 
Commission received no comments on the proposal. On May 19, 2004, the 
Amex amended the proposed rule

[[Page 40691]]

change.\6\ This order approves the proposed rule change.
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    \5\ See Securities Exchange Act Release No. 49449 (March 19, 
2004), 69 FR 15411.
    \6\ See letter from William Floyd-Jones, Associate General 
Counsel, Amex, to Nancy Sanow, Assistant Director, OMS, Commission, 
dated May 18, 2004 (``Amendment No. 3''). In Amendment No. 3, the 
Amex revised the proposed rule text to (i) replace the term ``Nasdaq 
National Market Security'' with ``Nasdaq National Market 
Securities'' in the definition of Auto-Ex Eligible Security in 
proposed Amex Rule 128A(b); (ii) replace the term ``Order Book 
Freeze'' with ``Order Book Pause'' in proposed Amex Rule 128A(g); 
(iii) delete the second paragraph of proposed Amex Rule 128(h); (iv) 
delete subparagraph (vii) of proposed Rule 128A(j); (v) replace the 
language ``according to its terms'' with ``in full at one price'' in 
subparagraph (ix) of proposed Amex Rule 128A(j); and (vi) make 
corresponding changes to the numbering within the proposed rule. 
This was a technical amendment and is not subject to notice and 
comment. The language of the proposed rule change is attached as 
Exhibit A.
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    The proposed rule change sets forth the Amex's proposed enhanced 
Auto-Ex technology, which would supersede the Exchange's earlier Auto-
Ex systems and permit Auto-Ex to occur against orders on the book. 
Proposed Amex Rule 128A would govern Auto-Ex of both ETFs and Nasdaq 
stocks traded on the Exchange. The Exchange has represented that it 
does not intend to extend the proposed new Auto-Ex procedures to other 
Amex traded equities at this time, although it may do so in the future. 
The proposed new rule would not affect Auto-Ex for options.
    In addition, the proposed rule change would amend Amex Rule 118 to 
create a new type of limit order, called an ``institutional order,'' 
that would be used for customer orders of 10,000 shares or more in 
Nasdaq National Market Securities. This new order would be required 
either to be executed automatically in full at one price, or to be 
routed to the specialist for execution or partial execution. Unlike an 
all or none order, an institutional order would have standing on the 
book because it could be executed in part once it is on the book.
    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.\7\ The 
Commission 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),\9\ 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.
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    \7\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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    Specifically, the Commission believes that the Amex's proposal to 
enhance its Auto-Ex procedures should provide investors with faster 
execution of eligible orders. The proposed rule change should benefit 
the Nasdaq marketplace by providing faster executions of eligible 
Nasdaq orders, especially since all markets that trade Nasdaq 
securities at present provide some form of automatic execution. 
Likewise, speed of execution is important to trading of ETFs because 
they are derivative securities whose prices are based on baskets of 
other securities and can change rapidly in very short timeframes. The 
Commission notes, however, that while it believes the proposed rule 
change constitutes an improvement over the Amex's current Auto-Ex 
capabilities, the Amex's proposal would not be sufficient for Amex to 
be considered an ``automated order execution facility,'' as defined in 
Rule 600(b)(3) of proposed Regulation NMS because, among other things, 
it would not provide for an immediate automated response to all 
incoming subject orders.\10\
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    \10\ See Securities Exchange Act Release No. 49325 (February 26, 
2004), 69 FR 11126 at 11203 (March 9, 2004).
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    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with the requirements of the Act and rules 
and regulations thereunder.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\11\, that the proposed rule change (SR-Amex-2004-04), as amended, is 
approved.
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    \11\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
    The text of the proposed rule change is set forth below. Proposed 
new language is in italics; proposed deletions are in [brackets].
* * * * *

Trading in Nasdaq National Market Securities

    Rule 118 (a) through (k) no change.
    (l) & (m) (proposed in unapproved Amex rule filings).
    (n) An institutional order is a limit order for a Nasdaq National 
Market Security of 10,000 shares or more transmitted to the order book 
electronically which is to be executed automatically in full at one 
price. If it is not executed automatically in full at one price, it is 
to be routed to the specialist for execution and may be partially 
executed. Unlike an all or none order, an institutional order has 
standing on the limit order book. An institutional order may not be 
entered for the proprietary account of a broker-dealer.
* * * * *

[Automatic Execution for Nasdaq National Market Securities (Temporary)]

    [Rule 118A-T. (a) An Auto-Ex eligible order in a Nasdaq National 
Market System security will be executed automatically at the Amex 
Published Quote (``APQ'') for such security in accordance with the 
provisions of this rule.]
    [(b) An Auto-Ex eligible order for a Tier 1 Nasdaq National Market 
security must be a round lot, or partial round lot (``PRL''), market or 
marketable limit order for 1,000 shares or less received by the 
Exchange electronically. An Auto-Ex eligible order for a Tier 2 Nasdaq 
National Market security must be a round lot, or PRL, market or 
marketable limit order for 500 shares or less received by the Exchange 
electronically. For purposes of this Rule, a ``Tier 1'' Nasdaq National 
Market security is a stock with an average daily consolidated trading 
volume of over 10 million shares during the preceding calendar quarter, 
and a ``Tier 2'' Nasdaq National Market security is a stock with an 
average daily consolidated trading volume of 10 million shares or less 
during the preceding calendar quarter.]
    [(c) The specialist will be the contra side to each Auto-Ex 
execution. In the event that the specialist trades as a result of an 
automatic execution at a price at which the specialist could have 
executed one or more limit orders on the book, the specialist shall 
immediately execute any such limit orders at the price of the Auto-Ex 
trade to the extent such booked orders would have been executed had the 
incoming order not been executed automatically.]
    [(d) An Auto-Ex eligible order will be routed to the specialist and 
will not be automatically executed in the following situations:
    (i) Auto-Ex will be turned-off for one or more securities when the 
specialist, in conjunction with a Floor Governor or two Floor 
Officials, determine that quotes are not reliable and the Exchange

[[Page 40692]]

or the Nasdaq Stock Market is experiencing communications or systems 
problems, ``fast markets,'' or delays in the dissemination of quotes.
    (ii) Auto-Ex will not occur if it would cause the election of a 
stop or stop limit order on the book, or it would cause a trade to 
occur through the price of an all or none order on the book.
    (iii) Auto-Ex will not occur in a stock for 10 seconds after there 
has been an Auto-Ex trade in that security.
    (iv) Auto-Ex will not occur in a stock when the spread in the Amex 
Published Quote in that security is equal to or greater than thirty 
cents.
    (v) Auto-Ex will not occur in a stock when the Amex Published Quote 
on the opposite side of an incoming order is not at the NBBO for that 
security.
    (vi) Auto-Ex will not occur when the size displayed in the APQ on 
the opposite side of an incoming order is less than the size of the 
incoming order.
    (vii) Auto-Ex will not occur when an incoming order is larger than 
the applicable Tier 1 or Tier 2 size parameter for that stock.]
    [(e) The Auto-Ex Enhancements Committee (``Committee'') will review 
a request from a specialist with respect to one or more securities to:
    (i) Increase the size of Auto-Ex eligible orders above 1,000 share 
Tier 1 or 500 share Tier 2 parameters,
    (ii) Reduce the duration of the 10-second pause between Auto-Ex 
executions, and/or
    (iii) Increase the number of trades before the implementation of 
the 10-second pause in Auto-Ex described in paragraph (d)(iii) above.
    The Committee may approve, disapprove or conditionally approve such 
requests. The Committee will balance the interests of investors, the 
specialist, and the Exchange in determining whether to grant a 
specialist's request to modify the Auto-Ex parameters specified in (i) 
through (iii) of paragraph (e) of this Rule. The Committee also will 
consider a request from a specialist to reduce Auto-Ex parameters that 
previously had been increased, provided, however, that the Committee 
may not reduce the Auto-Ex parameters below the floors stated in 
paragraphs (b) and (d) of this Rule. The Committee may delegate its 
authority to one or more Floor Governors. The Committee will meet 
promptly to review a Governor's decision to modify Auto-Ex parameters 
in the event that a Governor acts pursuant to delegated authority.]
* * * * *

[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 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 seconds.]

[s s s Commentary ]

    [.01 Auto-Ex eligible orders for Exchange Traded Funds (``ETFs'') 
must be round lot, market or marketable limit orders for 2,000 shares 
or less received by the Exchange electronically. 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. Notice concerning 
Auto-Ex eligibility criteria will be provided to members periodically 
via Exchange circulars and will be posted on the Exchange's web site.]
    [.02 Upon the request of a specialist, the Auto-Ex Enhancements 
Committee (``Committee'') will review and approve, disapprove or 
conditionally approve requests to increase the size of Auto-Ex eligible 
orders above 2,000 shares. The Committee will balance the interests of 
investors, the specialist, Registered Options Traders in the crowd, and 
the Exchange in determining whether to grant a request to increase the 
size of Auto-Ex eligible orders above 2,000 shares. The Committee also 
will consider a request from a specialist to reduce the size of Auto-Ex 
eligible orders balancing the same interests that the Committee would 
consider in determining whether to increase the size of Auto-Ex 
eligible orders.]
    [.03 Upon the request of a specialist, a Floor Governor may 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 if such action is 
appropriate in view of system problems or unusual market conditions. 
Any such change in the size of Auto-Ex eligible orders will be 
temporary and will only last until the end of the unusual market 
condition or the correction of the system problem.
    Auto-Ex eligible orders will be routed to the specialist and will 
not be automatically executed in situations where the specialist in 
conjunction with a Floor Governor or two Floor Officials determine that 
quotes are not reliable and if the Exchange is experiencing 
communications or systems problems, ``fast markets,'' or delays in the 
dissemination of quotes.
    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. Members and member organizations also will be 
notified when the Exchange has determined that quotes are not reliable 
and the Exchange is experiencing communications or systems problems, 
``fast markets,'' or delays in the dissemination of quotes prior to 
disengaging Auto-Ex.]
    [.04 When the Amex establishes the NBBO (National Best Bid or 
Offer), Auto-Ex will be programmed to execute eligible incoming ETF 
orders at the Amex Published Quote (``APQ'') plus a programmable number 
of trading increments with respect to the Amex bid (with respect to 
incoming sell orders), and less a programmable number of trading 
increments with respect to the Amex offer (with respect to incoming buy 
orders). The amount of price improvement relative to the APQ will be 
determined by the Committee.
    When the Amex does not establish the NBBO, Auto-Ex will be 
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. Auto-Ex will execute eligible incoming orders at an improved price 
relative to the APQ unless a trade through would result of an away ITS 
participant market. If a trade through would result, the orders will be 
routed to the Amex specialist for execution. The extent to which Auto-
Ex will better the APQ in order to match or improve the NBBO (if the 
Amex does not establish the NBBO) will be determined by the Committee.
    Auto-Ex will be unavailable (i) with respect to incoming sell 
orders when the published bid on the Amex is for 100 shares, and (ii) 
with respect to incoming buy orders when the published offer on the 
Amex is for 100 shares. Auto-Ex also will be unavailable when the 
spread between the bid and offer on the Amex exceeds a specified 
minimum or maximum value. The Committee will determine the spread in 
the APQ at which Auto-Ex will be unavailable.
    The Committee will act upon the request of a specialist and will 
balance the interests of investors, the specialist, Registered Options 
Traders in the crowd, and the Exchange in determining (i) the amount of 
price improvement

[[Page 40693]]

that will be programmed into Auto-Ex when the Amex establishes the 
NBBO, (ii) the extent to which Auto-Ex will better the APQ in order to 
match or improve the NBBO (if the Amex does not establish the NBBO), 
and (iii) the spread in the APQ at which Auto-Ex will be unavailable.]
    [.05 Specialists and Registered Options Traders that sign-on to 
Auto-Ex will be automatically allocated the contra side of Auto-Ex 
trades for ETFs according to the following schedule:

------------------------------------------------------------------------
                                                            Approximate
                                            Approximate      number of
                                             number of        trades
                                              trades       allocated to
Number of ROTs signed on to Auto-Ex in a   allocated to   ROTs signed on
                  crowd                   the specialist    to Auto-Ex
                                          throughout the  throughout the
                                           day (``target   day (``target
                                             ratio'')        ratio'')
                                             (percent)       (percent)
------------------------------------------------------------------------
1.......................................              60              40
2-4.....................................              40              60
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 will 
be allocated to the specialist and Registered Options Traders signed-on 
to Auto-Ex will be randomly determined. Auto-Ex trades then will be 
automatically allocated in sequence on a rotating basis to the 
specialist and to the Registered Options Traders that have signed-on to 
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 will divide the trade into 
lots of 100 shares each. Each lot will be considered a separate trade 
for purposes of determining target ratios and allocating trades within 
Auto-Ex.]
    [.06 The Committee may delegate its authority to one or more Floor 
Governors. The Committee will meet promptly to review a Governor's 
decision in the event that a Governor acts pursuant to delegated 
authority.]
* * * * *

Automatic Execution

    Rule 128A. (a) An Auto-Ex Eligible Order for an Auto-Ex Eligible 
Security will be executed automatically in accordance with the 
provisions of this rule.
    (b) Definitions: Amex Published Quote (``APQ''). The Amex Published 
Quote is the highest bid and lowest offer disseminated by the American 
Stock Exchange.
    Best Bid and Offer (``BBO''). The Best Bid and Offer is the highest 
bid and lowest offer disseminated by the national securities exchanges 
and facilities of national securities associations other than the Amex. 
Auto-Ex will disregard a bid or offer of less than 200 shares 
disseminated by any national securities exchange or facility of a 
national securities association in determining the BBO.
    Auto-Ex Eligible Order. An Auto-Ex Eligible Order is a round lot or 
partial round lot market or marketable limit order delivered to the 
order book electronically. An Auto-Ex Eligible Order does not include 
an order update (e.g., a ``cancel/replace'' and ``cancel/leaves'' 
order) An Auto-Ex Eligible Order does not include an order entered into 
the order book by the specialist. Orders on the book may be 
automatically matched against incoming Auto-Ex Eligible Orders as 
provided in this Rule.
    Auto-Ex Eligible Security. Auto-Ex Eligible Securities consist of 
Portfolio Depository Receipts, Index Fund Shares, Trust Issued Receipts 
and Nasdaq National Market Securities traded on the Exchange together 
with such other securities as may be designated as Auto-Ex Eligible 
Securities from time to time by the Exchange.
    Auto-Ex. Auto-Ex is the system for automatically executing Auto-Ex 
Eligible Orders.
    Auto-Ex Step-Up. Auto-Ex Step-Up is a functionality that allows 
Auto-Ex Eligible Orders to be automatically executed against the 
Specialist/Registered Trader Quantity at the APQ plus (in the case of a 
bid) or minus (in the case of an offer) a specified number of trading 
increments designated by the Auto-Ex Enhancements Committee necessary 
to match the BBO when the APQ is inferior to the BBO. Auto-Ex Step-Up 
is not available to orders for the proprietary account of a broker-
dealer.
    Auto-Ex Step-Up Amount. The Auto-Ex Step-Up Amount is the specified 
maximum number of trading increments necessary to attempt to match the 
BBO when the APQ is inferior to the BBO.
    Auto-Ex Step-Up Size: The Auto-Ex Step-Up Size is the maximum size 
of an Auto-Ex Eligible Order that is eligible for Auto-Ex Step-Up.
    Specialist/Registered Trader Quantity: The Specialist/Registered 
Trader Quantity is the number of shares that the specialist and 
registered traders in a crowd signed on to Auto-Ex will purchase or 
sell through Auto-Ex executions.
    Available Book Quantity: The Available Book Quantity is the number 
of shares on the order book at the APQ plus additional orders on the 
book that can be executed at or within the APQ minus shares on the book 
priced at or within the APQ that cannot be executed by their terms 
(e.g., all or none orders and tick sensitive orders).
    Trade Threshold: The Trade Threshold is the number of Auto-Ex 
trades that the specialist and crowd will execute through Auto-Ex.
    Maximum Spread Value: The Maximum Spread Value is the size of the 
spread at which Auto-Ex is automatically turned-off because the quote 
is too wide.
    (c) Hours of Operation: Auto-Ex will be available for an Auto-Ex 
Eligible Security following the opening or reopening of a security on 
the Exchange once a trade has occurred and a quote has been 
disseminated in the security. Auto Ex will be turned-off at 3:59 p.m.. 
For securities that trade until 4:15 p.m., Auto-Ex will be re-enabled 
at 4:01 p.m. and will continue to be available until 4:14 p.m.
    (d) Interaction of Auto-Ex and Auction Market. (i) A bid or offer 
incorporated in the APQ shall not be deemed accepted by a member in the 
trading crowd and, as the result, no contract shall be created, until 
the

[[Page 40694]]

specialist begins to enter the member's acceptance into the order book.
    (ii) Auto-Ex will be turned-off on the bid or offer side of the 
market (as appropriate) in the event that (1) one or more brokers or 
registered traders in the trading crowd make a bid or offer within the 
APQ (a priority bid or offer), or (2) one or more brokers in the crowd 
make a bid or offer that is on parity with the APQ (a parity bid or 
offer). Auto-Ex will be turned-on again when all members signed-on to 
Auto-Ex in the crowd are on parity and no broker is making a parity bid 
or offer.
    (e) Auto-Ex Enhancements Committee. The Auto-Ex Enhancements 
Committee will review, approve, disapprove, or conditionally approve 
specialist requests to take the following actions:
    (i) Establish the Trade Threshold;
    (ii) Establish the Specialist/Registered Trader Quantity;
    (iii) Limit the size of Available Book Quantity;
    (iv) Establish the Auto-Ex-Step-Up Size and Auto-Ex-Step-Up Amount 
in securities where there are Registered Traders in the crowd;
    (v) Establish the Maximum Spread Value;
    (vi) Establish the di-minimis trade through amount for securities 
that are listed in markets that have trade through rules.
    The Committee will balance the interests of investors, the 
specialist, registered traders signed on to Auto-Ex, and the Exchange 
in considering such requests. In the event that the Committee changes 
one or more Auto-Ex parameters, the minutes of the Committee's meetings 
will state the change in market conditions, competitive environment or 
other circumstance(s) that caused the Committee to change the 
parameter(s). The Committee may delegate its authority to one or more 
Floor Governors. The Committee will meet promptly to review a 
Governor's decision in the event that a Governor acts pursuant to 
delegated authority.
    (f) Determination of Execution Price: The price at which an Auto-Ex 
Eligible Order will be executed by Auto-Ex will be determined as 
follows:
    (i) Auto-Ex will execute an Auto-Ex eligible order at the APQ (or 
better, as provided for in this Rule) when the APQ is equal to or 
better than the BBO as determined by the Exchange's order processing 
systems. Auto-Ex will not execute an order, and the order will be 
routed to the specialist for execution, if execution of the order at 
the APQ would result in a trade through of the BBO;
    (ii) In the event that Auto-Ex Step-Up is engaged to match the BBO, 
Auto Ex will execute an Auto-Ex eligible order against the available 
Specialist/Registered Trader Quantity at the APQ plus (in the case of a 
bid) or minus (in the case of an offer) the lesser of (1) the Auto-Ex 
Step-Up Amount, or (2) the minimum number of trading increments 
necessary to match the BBO where the APQ is inferior to the BBO as 
determined by the Exchange's order processing systems. Auto-Ex will not 
execute an order, and the order will be routed to the specialist for 
execution, if (1) execution of the order at the APQ plus (or minus) the 
Auto-Ex Step-Up amount would result in a trade through of the BBO, or 
(2) the incoming order is larger than the Auto-Ex Step-Up size;
    (iii) If programmed to do so, Auto-Ex will execute an Auto-Ex 
eligible order at the APQ when the APQ is inferior to the BBO as 
determined by the Exchange's order processing systems by a specified 
number of trading increments (the ``di-minimis trade through amount''). 
Auto-Ex will not execute an order, and the order will be routed to the 
specialist for execution, if execution of the order at the APQ would 
result in a trade through of the BBO by more than the di-minimis trade 
through amount.
    Notwithstanding the foregoing, in the event that there are one or 
more executable limit orders on the order book on the opposite side of 
an Auto-Ex Eligible Order priced between the APQ, Auto-Ex will execute 
the incoming order against the order(s) on the order book at their 
limit price(s). In the event that there are one or more executable 
market orders in the order book on the opposite side of the incoming 
Auto-Ex-Eligible Order and the APQ spread is greater than the minimum 
trading variation, Auto-Ex will execute the incoming order against the 
resident market order(s) at the mid point between the best limit bid 
and offer or APQ (whichever is better), and, if this mid point value is 
not a trading interval, the price will be rounded up to the nearest 
trading interval.
    (g) Auto-Ex Coming out of an Order Book Pause. During an Order Book 
Pause, messages coming into the order book (e.g., orders, status 
requests, cancels, cancel/replaces) queue and do not enter the order 
book. When the Order Book Pause ends, Auto-Ex will be re-enabled 
immediately if all incoming orders are on the same side of the market. 
Auto-Ex will not be re-enabled, however, if there are orders on both 
sides of the market to allow the specialist to pair-off the orders to 
the extent possible. Automatic execution will resume once all messages 
in the queue are processed.
    (h) Auto-Ex Size: Auto-Ex will execute Auto-Ex Eligible Orders up 
to the lesser of: (1) the size displayed in the APQ plus executable 
orders on the book within the APQ, or (2) the sum of the remaining 
Specialist/Registered Trader Quantity and Available Book Quantity. 
Notwithstanding the foregoing, Auto-Ex trades executed by the Auto-Ex 
Step-Up functionality are limited to the Auto-Ex Step-Up Size.
    The round lot portion of a partial round lot order will be executed 
as if it were a round lot order and the odd lot portion of the order 
will be executed as if it were an odd lot order.
    (i) Contra Parties to Auto-Ex Trades. Auto-Ex will first allocate 
the contra side to an Auto-Ex trade to the Available Book Quantity in 
price/time priority. Auto-Ex will then allocate any portion of the 
Auto-Ex Eligible Order that remains unexecuted to the available 
Specialist/Registered Trader Quantity in accordance with participation 
percentages (``target ratios'') determined by the ETF Trading 
Committee.
    At the start of each trading day, the sequence in which shares will 
be allocated to the specialist and Registered Traders signed-on to 
Auto-Ex will be randomly determined. Auto-Ex shares then will be 
automatically allocated in sequence on a rotating basis to the 
specialist and to the Registered Traders that have signed-on to 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 will divide the trade into 
lots of 100 shares each. Each lot will be considered a separate trade 
for purposes of determining target ratios and allocating shares within 
Auto-Ex.
    (j) Auto-Ex Unavailability. Auto-Ex will be unavailable in the 
following situations.
    (i) Auto-Ex will not occur when the APQ is crossed with the BBO 
unless Auto-Ex is programmed to disregard the BBO in the case of a 
``di-minimis trade through'' amount.
    (ii) Auto-Ex will not occur when the Trade Threshold is exhausted 
and there is no Available Book Quantity.
    (iii) Auto-Ex will not occur when the Specialist/Registered Trader 
Quantity is exhausted and there is no Available Book Quantity.
    (iv) Auto-Ex will not occur when there is an open outgoing ITS 
commitment on behalf of a customer order.
    (v) Auto-Ex will not occur on the Amex bid or offer (as 
appropriate) in the event that (1) one or more brokers or

[[Page 40695]]

registered traders in the trading crowd make a bid or offer within the 
APQ (a priority bid or offer), or (2) one or more brokers in the crowd 
make a bid or offer that is on parity with the APQ (a parity bid or 
offer). Auto-Ex will be turned-on again when all members signed-on to 
Auto-Ex in the crowd are on parity and no broker is making a parity bid 
or offer.
    (vi) Auto-Ex will not occur on the bid or offer (as appropriate) in 
the event that the APQ on that side of the market is for less than 200 
shares.
    (vii) Auto-Ex will not occur when the order book on the Amex is 
locked or crossed with the APQ.
    (viii) Auto-Ex will not occur with respect to an incoming Auto-Ex 
Eligible All Or None or Institutional Order in the event that there is 
insufficient size to execute the order in full at one price.
    (ix) Auto-Ex will not occur if the execution of the incoming order 
would elect a stop order on the order book.
    (x) Auto-Ex will not occur if the specialist is in the process of 
executing an order in the security.
    (xi) Auto-Ex will not occur in one or more securities when the 
specialist, in conjunction with a Floor Governor or two Floor 
Officials, determine(s) that (1) quotes are not reliable, (2) the 
Exchange is experiencing communications or systems problems, ``Unusual 
Market Conditions'' as described in Amex Rule 115, or delays in the 
dissemination of quotes, or (3) the market(s) where the underlying 
securities trade (or Nasdaq with respect to Nasdaq National Market 
Securities) are experiencing communications or systems problems, 
``Unusual Market Conditions'' as described in SEC Rule 11Ac1-1, or 
delays in the dissemination of quotes.
    (xii) Auto-Ex will not occur if it would cause a trade to occur 
through the price of an all or none order on the book.
    (xiii) Auto-Ex will not occur if there are orders on both sides of 
the market when the order book comes out of a Pause \*\ condition to 
allow the specialist to pair-off the orders.
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    \*\ The Commission corrected the proposed rule text to replace 
``Freeze'' with ``Pause.'' Telephone conversation between William 
Floyd-Jones, Associate General Counsel, Amex, and Ann E. Leddy, 
Special Counsel, Division of Market Regulation (``Division''), 
Commission (June 25, 2004).
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    (xiv) Auto-Ex will not occur if the spread exceeds the Maximum 
Spread Value.
    Auto-Ex Eligible Orders that are not automatically executed will be 
routed to the specialist for handling.
[FR Doc. 04-15190 Filed 7-2-04; 8:45 am]
BILLING CODE 8010-01-P