[Federal Register Volume 70, Number 100 (Wednesday, May 25, 2005)]
[Notices]
[Pages 30170-30171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-2635]



[[Page 30170]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51715; File No. SR-Phlx-2004-83]


Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Order Granting Approval to Proposed Rule Change and Amendment No. 1 
Thereto and Notice of Filing and Order Granting Accelerated Approval to 
Amendment No. 2 Thereto Relating to the Matching of Certain Incoming 
Orders With Certain Phlx Existing Orders Through the PACE System

May 19, 2005.

I. Introduction

    On November 26, 2004, the Philadelphia Stock Exchange, Inc. 
(``Phlx'' 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 modify Phlx Rule 229 to permit 
the PACE System \3\ to match certain incoming orders with certain Phlx 
existing orders (the ``Matching Rule''). On March 10, 2005, the Phlx 
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 March 24, 2005.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ PACE is the Exchange's automated order routing, delivery, 
execution and reporting system for equities. See Phlx Rule 229.
    \4\ In Amendment No. 1, which replaced the original proposal in 
its entirety, Phlx modified two concepts contained in the original 
proposed rule change (those of the Midpoint Price and the Modified 
PACE Quote), clarified the operation of the proposed rule change, 
reorganized the rule text of proposed new Supplementary Material 
.04A to Phlx Rule 229 into subsections, and made corresponding 
changes to other portions of the Supplementary Material to Phlx Rule 
229 to reflect the applicability of the proposed rule change.
    \5\ See Securities Exchange Act Release No. 51394 (Mar. 18, 
2005), 70 FR 15141 (Mar. 24, 2005) (``Notice'').
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    The Commission received no comments on the proposal. On May 6, 
2005, the Phlx filed Amendment No. 2 to the proposed rule change.\6\ 
This order approves the proposed rule change as amended. 
Simultaneously, the Commission provides notice of filing of Amendment 
No. 2, grants accelerated approval to Amendment No. 2, and solicits 
comments from interested persons on Amendment No. 2.
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    \6\ In Amendment No. 2, which supplemented the proposal as 
noticed, the Phlx modified Supplementary Material .02 to Phlx Rule 
229 to clarify that if specialists offer access to PACE for orders 
without participating in the PACE execution guarantees for agency 
orders, where the entering member organization has generally elected 
not to receive automatic execution or primary market print 
protection for electronically delivered limit orders, those orders 
will be eligible for enhanced matching under Supplementary Material 
.04A to Phlx Rule 229.
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II. Description of the Proposal

    Under the proposal, the Phlx PACE System will check incoming orders 
against existing orders, and if possible, automatically execute those 
incoming orders against the existing orders prior to submitting them 
for execution by the specialist. The Phlx has represented that the 
purpose of the proposal is to help preserve the priority of orders and 
reduce incidents of inadvertent trading ahead of customer orders, and 
believes the proposal, among other things, will protect investors by 
increasing the number of orders that are matched without the 
participation of a dealer.
    To this end, under the proposed rule change, as amended, round-lot 
market and limit orders and the round-lot portion of non-all-or-none 
PRL \7\ market and limit orders entered after the opening will 
generally execute against existing round-lot market and limit orders 
and the round-lot portion of existing non-all-or-none PRL market and 
limit orders that have not been marked for layoff, if executable within 
the Modified PACE Quote.\8\ Incoming round lot all-or-none orders will 
be eligible for matching only if the size of the incoming all-or-none 
order is equal to or smaller than the first existing order it would 
match against. Conversely, if the incoming all-or-none order is larger 
than the first existing order it could match against, the incoming 
order will not automatically match, but will be handled by the 
specialist.\9\
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    \7\ ``PRL'' refers to a combined round-lot and odd-lot order. 
See Phlx Rule 229.
    \8\ The ``PACE Quote'' means the best bid/ask quote among the 
American, Boston, National, Chicago, New York, or Philadelphia Stock 
Exchanges, the Pacific Exchange, or the Intermarket Trading System/
Computer Assisted Execution System (``ITS/CAES'') quote, as 
appropriate. See Phlx Rule 229. The ``Modified PACE Quote'' is 
defined in the proposed rule change to mean the PACE Quote, unless 
the PACE Quote is comprised of another market's quote of 100 shares 
or less, in which case the Modified PACE Quote will be one cent away 
from such 100 share away quote.
    \9\ Orders that have been marked for lay-off (i.e., orders that 
are being sent to other marketplaces for execution and appropriately 
marked by the specialist within PACE) would not be eligible under 
the proposal to be matched against an incoming order. Further, no 
order for which the entering member organization has elected primary 
market high-low protection (as provided in Phlx Rule 229, 
Supplementary Material .07(a)(ii)) would be matched if the execution 
price of such execution would be outside the primary market high-low 
range for the day. In addition, notwithstanding Phlx Rule 229, 
Supplementary Material .01 regarding priority, existing Phlx orders 
would be executed in price/time priority with the highest bid/lowest 
offer executed first, with existing market orders, for purposes of 
enhanced matching priority, being treated as limit orders priced at 
the Midpoint Price (defined below). See Notice for examples and 
further details.
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    Under the Matching Rule, the price of the execution will be 
dependent on the Midpoint Price, meaning the midpoint of the Modified 
PACE Quote as rounded (if applicable),\10\ and the type of orders that 
are being matched.\11\ Existing Phlx orders generally will be executed 
in price/time priority with the highest bid/lowest offer executed 
first, with existing market orders, for purposes of enhanced matching 
priority, being treated as limit orders priced at the Midpoint Price. 
As part of the proposed rule change, the Phlx is also modifying 
language in other sections of Phlx Rule 229 to reflect and account for 
the operation of the new Matching Rule.
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    \10\ Rounding of the Modified PACE Quote will be applicable if 
the midpoint of the Modified PACE Quote is not a penny increment, in 
which case the Midpoint Price shall be rounded down (up) to the 
nearest penny if the existing Phlx order is an order to buy (sell).
    \11\ When one or more of the orders to be matched are limit 
orders, the execution price would be the price closest to the 
Midpoint Price that will allow the limit order(s) to execute. See 
Notice for examples and further details.
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III. Discussion and Commission Findings

    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 
exchange.\12\ In particular, the Commission believes that the proposal 
is consistent with Section 6(b)(5) of the Act,\13\ which requires that 
the rules of an exchange be designed to promote just and equitable 
principles of trade, to 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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    \12\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
    \13\ 15 U.S.C. 78f(b)(5).
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    Under the proposal, the PACE System will seek to execute eligible 
incoming customer orders against existing customer orders 
automatically, prior to submitting them for execution by the 
specialist. The Matching Rule will apply generally to non-all-or-none 
round-lot market and limit orders and the round-lot portions of non-
all-or-none PRL orders entered after the opening, as well as to round-
lot all-or-none orders and the round-lot portion of PRL all-or-none 
orders to the extent that such orders are smaller in size than an 
available contra-side order. Moreover, it will apply to

[[Page 30171]]

non-agency orders in PACE securities, even in the event that the PACE 
specialist does not agree to provide PACE execution guarantees for such 
non-agency orders. The Commission believes that, by thus increasing the 
automated handling of customer orders and matching incoming orders with 
existing orders without the participation of the specialist, the 
proposed rule change should better facilitate a wide range of 
transactions, help preserve the priority of existing orders, and reduce 
incidents of inadvertent trading ahead of customer orders as 
contemplated by the Exchange.
    The Commission believes that the midpoint of the Modified PACE 
Quote, the best bid/ask quote among the equities exchanges except in 
the case where the best bid/ask quote is comprised of an away market 
quote of 100 shares or less, is a reasonable price upon which to base 
the price at which customer orders are executed pursuant to the 
Matching Rule, subject to the rounding principles and provisions 
designed to accommodate the matching of limit orders, as described 
above.\14\ Moreover, the proposed rule change sets forth in detail for 
investors the procedures by which orders will be matched in the PACE 
System and the basis upon which the execution prices for such 
transactions will be determined.
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    \14\ See supra notes 10 and 11.
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    The Commission finds good cause for approving Amendment No. 2 to 
the proposed rule change prior to the thirtieth day after the date of 
the publication of notice thereof in the Federal Register. The 
Commission notes that Amendment No. 2 does not modify the proposed 
Matching Rule itself, but merely extends the improvements it offers to 
non-agency orders entered into the PACE System. The Commission 
therefore believes that it is appropriate to accelerate approval of 
Amendment No. 2 so that the proposed rule change, as amended, may be 
implemented without delay.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 2 
to 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-Phlx-2004-83 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-Phlx-2004-83. 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 Room. Copies of such 
filing also will be available for inspection and copying at the 
principal offices of the Exchange. 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-Phlx-2004-83 and should be submitted on or before June 
15, 2005.

V. Conclusion

    For the foregoing reasons, 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 exchange.
    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\15\ that the proposed rule change (SR-Phlx-2004-83), as amended, 
be, and it hereby is, approved, with Amendment No. 2 being approved on 
an accelerated basis.
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    \15\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E5-2635 Filed 5-24-05; 8:45 am]
BILLING CODE 8010-01-P