[Federal Register Volume 69, Number 219 (Monday, November 15, 2004)]
[Notices]
[Pages 65670-65672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3159]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-50645; File No. SR-PCX-2004-59]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment Nos. 1 and 2 Thereto by the Pacific Exchange, Inc. 
Relating to a New Order Modifier Entitled ``Proactive if Locked 
Reserve''

November 5, 2004.
    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 July 1, 2004, the Pacific Exchange, Inc. (``PCX'' or ``Exchange''), 
through its wholly-owned subsidiary PCX Equities, Inc. (``PCXE''), 
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 PCX. On October 26, 2004, the PCX 
submitted Amendment No. 1 to the proposed rule change.\3\ On October 
28, 2004, the PCX submitted Amendment No. 2 to the proposed rule 
change.\4\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Steven B. Matlin, Senior Counsel, Regulatory 
Policy, PCX, to Nancy J. Sanow, Assistant Director, Division of 
Market Regulation (``Division''), Commission, dated October 25, 2004 
and accompanying Form 19b-4 (``Amendment No. 1''). Amendment No. 1 
replaced and superceded the originally filed proposed rule change.
    \4\ See letter from Steven B. Matlin, Senior Counsel, Regulatory 
Policy, PCX, to Nancy J. Sanow, Assistant Director, Division, 
Commission, dated October 25, 2004 (``Amendment No. 2''). Amendment 
No. 2 made technical corrections to the proposed rule text of the 
proposed rule change, as amended.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The PCX proposes to amend its rules governing the Archipelago 
Exchange (``ArcaEx''), the equities trading facility of PCXE, by adding 
new processing capability for ArcaEx Reserve Orders in situations where 
a Reserve Order in an exchange-listed security is locked by another 
market. Below is the text of the proposed rule change. Proposed new 
language is italicized; proposed deletions are in [brackets].
* * * * *
Rule 7
Equities Trading
Orders and Modifiers
* * * * *
Rule 7.31 Orders and Modifiers
* * * * *
    (hh) Proactive if Locked Reserve. A Reserve Order that will route 
to another market center pursuant to PCXE Rule 7.37(d) for the away 
market's displayed size up to such reserve amount in the instance in 
which the other market center has locked the order and the locking 
market has not resolved the locked market situation in a timely manner 
based upon average response times from ITS Participants. In the event 
that the order routed from the Archipelago Exchange to the other market 
center is not executed in its entirety, the Archipelago Exchange shall 
post the order or portion thereof in the ArcaEx Book. Proactive if 
Locked Reserve will apply only to exchange-listed securities.
* * * * *

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, as 
amended, and discussed any comments it received

[[Page 65671]]

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 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 PCX states that, as part of its continuing efforts to enhance 
participation on the ArcaEx facility, it is proposing to include 
additional processing capability for ArcaEx Reserve Orders in exchange-
listed securities. The new order modifier would be entitled ``Proactive 
if Locked Reserve'' and would be utilized when a Reserve Order in an 
exchange-listed security is locked by another market and the offending 
market has not shipped a commitment or moved their quote to clear the 
lock.
    Currently, PCXE Rule 7.56 describes interaction between markets in 
exchange-listed securities when an order in the ArcaEx Book is locked 
by an away market. Specifically, the ITS Plan and the provisions of 
this rule require that, in locked market situations, upon receiving a 
locked market complaint, the offending market shall either ship a 
commitment to trade to the market that was locked or move its quote so 
as to unlock the market.\5\ The Exchange states that, in many cases, 
however, away markets that lock or cross ArcaEx do not adequately 
respond to complaints or do not move quotes to unlock or uncross the 
market. The proposed Proactive if Locked Reserve order modifier is 
designed to address this issue.
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    \5\ See ITS Plan Exhibit B, Section (d).
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    Under the proposed rule change, Equity Trading Permit Holders 
(``ETP Holders'') using the Proactive if Locked Reserve modifier would 
be able to request, for exchange-listed securities, that the away 
market's displayed size up to the reserve amount for a Reserve Order 
\6\ be shipped to an away market when the Reserve Order has been locked 
(or crossed) by the away market and there has been no resolution of the 
locked (or crossed) market by the offending away market. According to 
the Exchange, if the away market does not promptly respond to a locked 
market complaint as provided for under the ITS Plan, ArcaEx would 
proactively ship commitments to the offending market under the 
Proactive if Locked Reserve process.\7\
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    \6\ Reserve Orders, defined in PCXE Rule 7.31, are limit orders 
with a portion of the size displayed and with a reserve portion of 
the size not displayed.
    \7\ See ITS Plan Exhibit B, Section (d).
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    For example, assume ArcaEx posts a Reserve order with a Proactive 
if Locked Reserve Modifier for 50,000 Buy at 30.10, with 1,000 shares 
displayed and 49,000 shares in reserve. An away market subsequently 
locks this quote by offering 10,000 shares at 30.10. ArcaEx would first 
send an ITS complaint to the offending away market, indicating that the 
away market has locked a quote on ArcaEx. ArcaEx would simultaneously 
begin to monitor the time elapsing before receiving a response to its 
complaint. If the away market does not respond within a sufficient 
amount of time based upon average response times from ITS Participants, 
ArcaEx would ship 10,000 shares of the 49,000 shares in reserve to the 
away market (i.e., the away market's displayed quote) from the ArcaEx 
Reserve order at 30.10. In the above example, ArcaEx would ship as many 
shares as it had in reserve for the order with a Proactive if Locked 
Reserve Modifier to match the away market's displayed quote. 
Accordingly, if the away market was offering 50,000 shares at 30.10 
instead of 10,000 shares, ArcaEx would ship all 49,000 shares in the 
Reserve order while keeping the 1,000 shares displayed.
    The proposed Proactive if Locked Reserve modifier is utilized only 
if the offending market does not respond to the ArcaEx ITS complaint 
within an acceptable time period, based upon average response times 
from ITS Participants. If the away market declines the ArcaEx 
commitment, ArcaEx would post the declined total back to the Reserve 
order,\8\ for example, showing 1,000 shares Buy at 30.10 with a reserve 
amount of 49,000 shares. If the order is executed by the away market, 
and ArcaEx remains locked (or crossed), ArcaEx would ship the away 
market's display amount from the reserve portion of the Reserve Order 
to the offending market again, until the order is depleted. The display 
portion of the Reserve Order, however, will continue to be displayed 
and will not ship to the away market.
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    \8\ The Exchange states that any portion of an order which is 
sent to an away market and declined would re-enter ArcaEx as part of 
the original Reserve Order with its original time priority in 
accordance with PCXE Rule 7.36. To the extent the Reserve Order is 
executed in its entirety in the interim, the portion of the order 
that was sent to an away market and declined would establish a new 
time priority upon re-posting in the Arca Book pursuant to PCXE Rule 
7.36.
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    Furthermore, in the instance where a limit order in the Arca Book 
that is at the same price as, but superior in time to, the Proactive if 
Locked Reserve Order is locked by an away market, ArcaEx would follow 
the aforementioned procedures. Specifically, ArcaEx would first send an 
ITS complaint to the offending away market indicating that the away 
market locked the ArcaEx limit order. If the away market does not 
respond within a sufficient amount of time based upon average response 
times from ITS Participants, ArcaEx would ship from the Proactive if 
Locked Reserve Order the away market's displayed size up to the reserve 
amount. The limit order and display portion of the Proactive if Locked 
Reserve Order would continue to be displayed. Any portion of the 
Proactive if Locked Reserve Order that is sent to the away market and 
subsequently declined would be re-posted in the Arca Book pursuant to 
the description above.
    The PCX believes that the proactive shipping of commitments 
facilitated by the proposed Proactive if Locked Reserve modifier will 
mitigate locked or crossed markets, prevent unresponsive away markets 
from delaying executions, and provide increased opportunities for 
executing orders. The Exchange believes that the Proactive if Locked 
Reserve modifier will therefore aid enhanced order interaction and 
foster price competition. The PCX believes that the proposal also 
promotes a more efficient and effective market operation, and enhances 
the investment choices available to investors over a broad range of 
trading scenarios.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with section 6(b) of the Act \9\ in general, and furthers the 
objectives of section 6(b)(5) of the Act \10\ in particular, because it 
is designed to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in 
facilitating transactions in securities, and to remove impediments and 
perfect the mechanism of a free and open market, and, in general, to 
protect investors and the public interest.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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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 that is not necessary or appropriate 
in furtherance of the purposes of the Act.

[[Page 65672]]

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

    Written comments on the proposed rule change were neither solicited 
nor received.

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding, or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve such proposed rule change; or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

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. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-PCX-2004-59 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609.
    All submissions should refer to File Number SR-PCX-2004-59. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). 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, 450 Fifth 
Street, NW., Washington, DC 20549. Copies of such filing also will be 
available for inspection and copying at the principal office of the 
PCX. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-PCX-
2004-59 and should be submitted on or before December 6, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
 [FR Doc. E4-3159 Filed 11-12-04; 8:45 am]
BILLING CODE 8010-01-P