[Federal Register Volume 72, Number 225 (Friday, November 23, 2007)]
[Notices]
[Pages 65787-65797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22782]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-56798; File No. SR-NYSE-2007-102]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change Relating to NYSE Rule 1500 
(NYSE MatchPoint\SM\)

November 15, 2007.
    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 November 8, 2007, the New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') 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 substantially prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NYSE proposes to adopt NYSE Rule 1500 to establish NYSE 
MatchPoint\SM\ (``MatchPoint''), an electronic facility

[[Page 65788]]

that matches aggregated orders at predetermined, one-minute sessions 
throughout regular hours and after hours of the Exchange. MatchPoint 
will trade securities listed on all major exchanges.\3\ The text of the 
proposed rule change is available on the Exchange's Web site (http://www.nyse.com), at the Exchange, and at the Commission's Public 
Reference Room.
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    \3\ The major exchanges include the NYSE (including securities 
otherwise admitted to dealing on the NYSE pursuant to the Joint 
Self-Regulatory Organization Plan Governing the Collection, 
Consolidation and Dissemination of Quotation and Transaction 
Information for Nasdaq-Listed Securities Traded on an Unlisted 
Trading Privilege Basis (``UTP Plan'')), the NYSE Arca, Inc. Stock 
Exchange LLC (``NYSE Arca''), the NASDAQ Stock Market, Inc. 
(``Nasdaq''), the American Stock Exchange (``Amex'') and regional 
stock exchanges. The Exchange is a participant in the UTP Plan, a 
National Market System Plan that accommodates trading on participant 
exchanges of non-NYSE-listed securities on an unlisted trading 
privileges (``UTP'') basis. See Securities Exchange Act Release No. 
55192 (January 29, 2007), 72 FR 5456 (February 6, 2007) (File No. 
S7-24-89) (Plan amendment admitting the Exchange as a Plan 
Participant). The Exchange is proposing to permit UTP trading of 
non-NYSE-listed securities in MatchPoint matching sessions during 
the regular hours and after hours of the Exchange.
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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 NYSE included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The NYSE 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange seeks to establish the MatchPoint matching system to 
provide its customers with an ability to execute securities at a 
predetermined, externally derived, single trading price in accordance 
with algorithmic calculations during one-minute matching sessions at 
predetermined times during the regular hours (9:30 a.m. Eastern Time 
(``ET'') to 4 p.m. ET) and after hours of the Exchange.\4\ MatchPoint 
participants (``users'') transmit their market and limit orders, which 
are undisplayed, by means of an electronic interface. MatchPoint 
matches aggregated, anonymous orders of securities listed on the 
primary exchanges such as the NYSE, as well as securities admitted to 
trading on the NYSE pursuant to the UTP Plan that are listed on NYSE 
Arca, Nasdaq, Amex and regional stock exchanges.
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    \4\ NYSE MatchPoint will operate on an Eastern Time basis. All 
references to time herein and in the MatchPoint rules will mean 
Eastern Time.
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    The Exchange believes that MatchPoint will provide its customers a 
greater ability to execute single, block and portfolio (i.e., basket, 
list, etc.) orders efficiently and reduce the trading risks and costs 
associated with market volatility. MatchPoint customers who enter 
single orders, block orders and portfolio orders will reap the benefits 
of this centralized, neutral matching environment.\5\ Additionally, the 
Exchange believes that customers that rely on index-based or model-
driven trading and investment strategies will find MatchPoint to be a 
very effective trading tool.
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    \5\ The Exchange notes that portfolio matches have been in 
existence for over twenty years. Instinet's crossing network has 
been matching portfolios since December 1986 and Investment 
Technology Group Inc.'s Portfolio System for Institutional Trading 
(POSIT) has been matching portfolios since July 1987.
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    Because MatchPoint is an anonymous trading platform, no order 
information will be displayed and clearance and settlement of 
executions will be anonymous. Trade reports will be disseminated after 
each matching session.
    All NYSE Members, Member Organizations and Sponsored Participants 
of Sponsoring Member Organizations are automatically eligible for 
access to MatchPoint. Before access is granted to MatchPoint users, all 
users must go through a connectivity authorization process.\6\ After 
NYSE Members, Member Organizations and Sponsored Participants of 
Sponsoring Member Organizations obtain connectivity authorization they 
may access MatchPoint.
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    \6\ MatchPoint can only be accessed through an electronic 
Financial Information eXchange (``FIX'') application and/or an 
internet based password-protected order entry application. Users 
must fill out an application for connectivity through either of 
these two electronic connectivity capabilities. Once granted 
connectivity through the authorization process, eligible users may 
access MatchPoint.
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NYSE MatchPoint Matching Sessions
    The first MatchPoint matching session of the trading day will 
commence at 9:45 a.m. Thereafter, during the trading day of the 
Exchange, there will be a matching session at 10 a.m., 11 a.m., 12 
p.m., 1 p.m., 2 p.m. and 3 p.m. A MatchPoint after hours matching 
session will occur at 4:45 p.m.\7\
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    \7\ Because transactions from the MatchPoint after hours 
matching session, which occurs at 4:45 p.m., occur outside of 
regular trading hours, they cannot fall within the definition of 
trade-throughs and will not be subject to the provisions of Rule 611 
of Regulation NMS. See 17 CFR 242.600(b)(64) and (77).
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    MatchPoint matching sessions are predetermined one-minute trading 
periods that occur through an automated matching mechanism. During the 
matching sessions, the Matchpoint Reference Price (``Reference Price'') 
is determined and eligible orders are executed at the designated hour, 
as stated in the rule, at the randomly selected time during the 
predetermined one-minute trading session. The matching and execution of 
orders occurs immediately after the algorithm selects a Reference 
Price. No user can be assured of a match unless they enter an eligible 
portfolio or single order with an internal match designation that 
corresponds with contra side eligible portfolio or single orders with 
internal match designations from the same user. No user knows precisely 
when the match will occur. If an order is not executed in a particular 
matching session it will be immediately cancelled back to the user upon 
completion of the matching session. The user may resubmit the order in 
any one of the subsequent matching sessions.

NYSE MatchPoint Reference Prices

    The Reference Price is the single trading price at which MatchPoint 
orders will execute during a predetermined one-minute ``matching 
session.'' MatchPoint employs a passive pricing system. The Reference 
Price is derived from external market data of the Exchange and other 
primary securities markets. There is no price discovery as orders are 
not displayed and all trades occur in accordance with a predetermined 
algorithm.
    The Reference Price is calculated differently for regular hour 
matching sessions and the after hours matching session. During the 
regular hours of the Exchange, the Reference Price shall be the 
midpoint of the national best bid and offer (``NBBO'') which is 
randomly selected during a predetermined one-minute pricing period. For 
the after hours MatchPoint matching session, the Reference Price is the 
official closing price of the primary market (i.e., the listing market) 
for securities listed on the NYSE, NYSE Arca, Amex, Nasdaq and regional 
stock exchanges. If, however, there is no official closing price for a 
particular security, the Reference Price will be the last sale

[[Page 65789]]

price of the primary market for a particular security.

Half Penny Increments

    The MatchPoint Reference Price for the matching sessions that occur 
during the regular hours (i.e., the midpoint of the NBBO), may be 
calculated to three (3) decimal places when the NBBO is an odd penny 
spread (i.e., one (1) penny, three (3) pennies, five (5) pennies, 
etc.). For example, if the NBBO of Stock XYZ is $23.01 to $23.02, the 
Reference Price is $23.015. As a consequence, executions at the 
midpoint of the NBBO may be in half penny increments, requiring the use 
of three decimal places, as demonstrated in the example.\8\
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    \8\ MatchPoint will not display, rank or execute orders in any 
NMS stock priced below one dollar ($1.00). In addition, MatchPoint 
will not display, rank or execute orders in increments smaller than 
a penny. However, when there is an odd penny spread, as described 
above, MatchPoint will execute it in a half penny increment. The 
Exchange notes that, in response to public comments to the 
Regulation NMS Proposing Release, the Commission wrote, ``Executions 
occurring at a sub-penny price resulting from a midpoint, VWAP, or 
similar volume-weighted pricing algorithm are not prohibited by Rule 
612 [of Regulation NMS].'' See Securities Exchange Act Release No. 
51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) (``Regulation NMS 
Release'') at note 831.
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Securities Priced Below One Dollar

    As discussed above, MatchPoint orders in securities are not subject 
to auction-market price discovery procedures, as Reference Prices of 
securities are not determined until a matching session commences and 
the algorithm calculates the price of the securities. If the MatchPoint 
algorithm prices a security (i.e., the Reference Price) below one 
dollar ($1.00), MatchPoint will not execute orders in these securities 
but will cancel these orders back to the user immediately upon 
completion of the matching session.

Entry and Processing of NYSE MatchPoint Orders

MatchPoint Orders

    MatchPoint users may enter, correct or cancel orders beginning at 
3:30 a.m. until 4:45 p.m. The MatchPoint system will not accept any 
orders before 3:30 a.m. or after 4:45 p.m. MatchPoint will accept and 
execute single orders and NYSE MatchPoint Portfolios (``portfolios''). 
Orders may be either market or limit orders and must have a minimum 
size of one round lot. As discussed in more detail below, MatchPoint 
will permit odd lot and partial round lot orders to be entered into the 
system. Odd lot orders and the odd lot portion of partial round lot 
orders will be reported as unexecuted.
    Orders may not be cancelled or replaced while a matching session is 
in progress or when trading in the applicable security is halted in the 
MatchPoint system. MatchPoint orders shall not be available for 
execution until the next eligible matching session. All orders must be 
available for automatic execution. MatchPoint has no order delivery 
capability and will not route to other market centers. Users, however, 
would be able to enter eligible orders into MatchPoint through a FIX 
\9\ application and/or an internet based order entry system provided 
the orders are available for automatic execution. MatchPoint orders 
will not trade-through a Protected Bid or Protected Offer as defined in 
Regulation NMS.\10\
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    \9\ FIX Protocol is a messaging standard developed specifically 
for the real-time electronic exchange of securities transactions.
    \10\ See Regulation NMS Release, supra note 8. Because the 
MatchPoint Reference Price during the regular hours of the Exchange 
is calculated to be the midpoint of the NBBO, no trade-through 
executions will occur and, therefore, Rule 611 of Regulation NMS 
(``Order Protection Rule'') will not be violated.
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MatchPoint Order Parameters

    All MatchPoint orders, single and portfolio, must have the 
following parameters: (1) List name; \11\ (2) matching session (if a 
user fails to designate a specific matching session, the system will 
provide a default function and direct the order to the next eligible 
matching session); (3) side of the market (i.e., buy, sell or short 
side); (4) symbol; and (5) minimum and maximum amount of shares 
available for execution. Additionally, a user may include an optional 
constraint (i.e., net cash and internal match constraints) for a 
MatchPoint order.
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    \11\ A portfolio must have a unique portfolio name that is 
distinct from the names of other portfolios of the same user.
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MatchPoint Order Designation

    MatchPoint orders must be designated for only one of the matching 
sessions during regular hours of the Exchange or for the single after 
hours matching session. If a MatchPoint order does not execute in the 
designated matching session, it will be cancelled back to the user 
immediately upon completion of the matching session. If a user fails to 
designate a particular matching session for a MatchPoint order, the 
order, by default, shall be available for execution in the next 
scheduled matching session. If an undesignated order does not execute 
in the next scheduled regular hours matching session it will be 
cancelled back to the user immediately upon completion of such matching 
session. If a user fails to designate an order and enters the order 
after 3 p.m., which is the last regular hours matching session, the 
order will participate in the after hours matching session at 4:45 p.m. 
If the order does not execute in the after hours matching session it 
will be cancelled back to the user immediately upon completion of the 
after hours matching session.
    As discussed above, a user must designate an order for only one 
matching session at a time. For example, if a user wishes to have an 
order available for execution in the 11 a.m. matching session, the user 
must designate the order for the 11 a.m. matching session and must 
enter the order into the MatchPoint system anytime between 3:30 a.m., 
when the system opens to receive orders, and 11 a.m., when the 
designated matching session commences. If the order does not execute in 
the 11 a.m. matching session, such order will be immediately cancelled 
back to the User upon completion of the matching session. Thereafter, 
the user must submit a new order for execution in another matching 
session, e.g., the 12 p.m. matching session. The user must submit the 
subsequent order with a designation for the 12 p.m. matching session. 
Such order must then be entered into the system before commencement of 
the 12 p.m. matching session. Again, if the order does not execute in 
the 12 p.m. matching session, such order will be immediately cancelled 
back to the user upon completion of the 12 p.m. matching session.

Round Lot Orders

    MatchPoint will execute orders only in round lots. The MatchPoint 
system will accept odd lot orders but not execute them. Odd lot orders 
entered into the MatchPoint system will be reported to the user as 
unexecuted. Similarly, orders containing partial round lots (i.e., 
``mixed lots'') may be entered into MatchPoint in the form of a 
portfolio but the odd lot portion of the order will not be executed and 
will be reported to the user as unexecuted. The system will permit the 
entry of odd lot and partial round lot orders to accommodate portfolio 
orders. The Exchange believes that to require the portfolio-based users 
to first strip their orders of odd lots and partial round lots before 
entering their orders into MatchPoint would introduce operational risk 
into the administration of the portfolios and, for example, disturb the 
tracking of the portfolios that follow the underlying index. 
Additionally, the Exchange believes that excluding odd lot and partial 
round lot

[[Page 65790]]

orders from MatchPoint will discourage portfolio trading and 
significantly reduce liquidity in the MatchPoint market.
    The following example demonstrates how odd lot and partial round 
lot orders are processed through MatchPoint:
    A portfolio of buy orders is entered into MatchPoint:

Stock A: 12,300 shares.
Stock B: 5,650 shares.
Stock C: 35 shares.
Stock D: 17,099 shares.

    Depending upon available contra side interest, the following 
portfolio executions could occur: Order A could execute up to 12,300 
shares. Order B could execute up to 5,600 shares with at least 50 
shares immediately cancelled back to the user upon completion of the 
matching session. Order C will result in all 35 shares being 
immediately cancelled back to the user upon completion of the matching 
session. Order D will execute up to 17,000 shares and at least 99 
shares will be immediately cancelled back to the user upon completion 
of the matching session.

NYSE MatchPoint Order Allocation

    MatchPoint orders will be allocated on a pro rata basis, such that 
shares will be allocated pro rata in round lots (rounded down to the 
nearest 100 shares) to eligible orders based on the original size of 
the order. In this process MatchPoint will honor all user-directed 
constraints. If the allocation to an eligible order is less than the 
minimum acceptable execution quantity for that order, the order shall 
not be eligible for execution in that matching session. If additional 
shares remain after the initial pro rata allocation, those shares will 
continue to be allocated pro rata to eligible orders. If additional 
shares remain thereafter that are the same size or are unexecuted 
because of rounding or minimum trade size constraints, the remaining 
shares will be allocated in 100 share lots to the oldest eligible 
orders.
    The example below demonstrates how MatchPoint will allocate shares 
on a pro rata basis:

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                                                                                                      Shares
                User                         Side         Shares entered           Price             executed
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User A.............................  Buy................         100,000  MKT...................         100,000
User B.............................  Buy................         100,000  MKT...................         100,000
User C.............................  Sell...............         100,000  MKT...................         *74,100
User D.............................  Sell...............          75,000  MKT...................         *55,600
User E.............................  Sell...............          50,000  MKT...................          37,000
User F.............................  Sell...............          25,000  MKT...................          18,500
User G.............................  Sell...............          10,000  MKT...................           7,400
User H.............................  Sell...............           5,000  MKT...................           3,700
User I.............................  Sell...............           5,000  MKT...................           3,700
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    In this example the total amount of buy orders is 200,000 shares. 
The total amount of sell orders is 270,000 shares. There are 70,000 
more shares to sell than to buy. The greatest number of shares that may 
execute in the MatchPoint system is 200,000 shares. 200,000 shares is 
74.074% (rounded percentage) of 270,000. Therefore, the pro rata 
percentage that will be allocated to each of the seven sell orders is 
74.074%. Based on the order size of each order, MatchPoint will prorate 
the available liquidity (200,000 shares) accordingly (see ``Shares 
Executed'' in the example above). (* Users C and D each receive an 
additional 100 shares because C and D are the oldest eligible orders 
after the pro rata share allocations.)
    The second example (below) will illustrate the allocation of 
MatchPoint shares when all orders are equal in size. Under these 
circumstances, MatchPoint will allocate shares based on order entry 
sequence. The oldest order will get the larger fill if residual shares 
remain after the initial pro rata allocation. In the example below, 
assume the following orders are received in the following sequence:

MatchPoint Orders:
    1. Broker-dealer A: Buy 10,000 @ mkt
    2. Broker-dealer B: Sell 10,000 @ mkt
    3. Broker-dealer C: Sell 10,000 @ mkt
    4. Broker-dealer D: Sell 10,000 @ mkt
MatchPoint Executions:
    1. 10,000 fully allocated order
    2. 3,300 shares + 100 residual shares = 3,400 (oldest sell order)
    3. 3,300 shares executed
    4. 3,300 shares executed

    The results of the matching session are as follows: Broker-dealer 
A's order is allocated 9,900 shares from a pro rata fill from each of 
the three sell orders from broker-dealers B, C and D in the amount of 
3,300 shares. Each sell order has an equal residual of 6,700 shares, 
but because broker-dealer B has the oldest order of the three sell 
orders, B's residual 100 shares of stock will be allocated to A's buy 
order resulting in a fully allocated order of 10,000 shares.

Portfolio Trading

    A MatchPoint user may submit NYSE MatchPoint Portfolios into the 
MatchPoint system for execution. An NYSE MatchPoint Portfolio is a 
group of linked orders with user-directed parameters and a unique, 
user-defined portfolio name. The portfolio orders may represent 
separate and distinct broker dealer-customer orders and separate and 
distinct proprietary broker dealer orders. A user may enter one 
portfolio of buy and sell/short orders or many portfolios of buy and 
sell/short orders.

Internal Match Constraints

    MatchPoint portfolio users may effectuate internal matches and 
simultaneously match residual shares against orders from other users 
within a single matching session when using an optional internal match 
constraint. This type of constraint enables the user to execute trades 
between the same user's portfolios first before trading with other 
available orders in a particular matching session. If, after an 
internal match occurs and residual orders remain, the residual 
portfolios will trade with all other orders. Single orders may be 
designated for internal matches as well.
    Internal matches have priority over other executions. MatchPoint 
will first process internal matches and then process all other orders 
in the matching session. All user-directed constraints will be honored 
in the internal match. An internal match constraint, like a MatchPoint 
order, is active only for a single matching session. A user may 
resubmit a new internal match constraint when resubmitting an order for 
a different matching session.
    All orders that are designated with an internal match designation, 
single or portfolio orders, and entered by the same user are eligible 
for matching with all such orders. For example, single orders that have 
internal match designation are capable of matching

[[Page 65791]]

with all other orders that have internal match designations entered by 
the same user. Portfolio orders within a portfolio that are designated 
for internal matches are also capable of matching with one another when 
entered by the same user. Such orders are allocated on a pro rata basis 
as described above.
    An internal match is illustrated in the following example:
    Broker-dealer A enters one order in a portfolio to buy 20,000 
shares of XYZ stock and in another portfolio Broker-dealer A enters an 
order to sell 10,000 shares of XYZ stock. Broker-dealer B enters an 
order to sell 10,000 shares of XYZ stock, and broker-dealer C enters an 
order to sell 10,000 shares of XYZ stock. The internal match will 
result in the following executions: Broker-dealer A's buy order for 
20,000 shares of XYZ stock will trade with broker-dealer A's sell order 
of 10,000 and 5,000 shares of XYZ stock from broker dealer B and 5,000 
shares of XYZ stock from broker dealer C respectively, leaving broker-
dealers B and C with residual amounts of 5,000 shares each of XYZ 
stock. The unexecuted shares of XYZ stock for broker-dealers B and C 
(5,000 shares each) will be immediately cancelled back to broker-
dealers B and C upon completion of the matching session.

Net Cash Constraints

    An optional ``net cash'' constraint provides valuable risk and cash 
management tools for portfolio users. A user entering a single order 
may also place a net cash constraint on that order. To execute a net 
cash constraint, a user must enter a specific net buy dollar amount and 
a specific net sell dollar amount for a portfolio. A net cash 
constraint is active only for a single matching session. A user may 
resubmit a new net cash constraint when resubmitting an order for a 
different matching session. MatchPoint users may utilize such net cash 
constraints as the primary vehicle for controlling how much a user may 
spend or raise in an individual portfolio. This functionality enables 
users to keep their purchases and sales in line with each other and to 
fund additional purchases.
    When calculating a customer's net cash constraint position, the 
matching algorithm takes into account the eligible portfolio order 
shares in a specific security, the reference price of the security and 
the customer's net cash constraint. MatchPoint first processes the 
stock with the largest orders in the largest portfolios. In order to 
honor all cash constraints, the matching algorithm processes all single 
and portfolio orders in a particular security that have net cash 
constraints and calculates share allocation by applying a percentage of 
the original order size to contra side shares that are available to 
fill the order. The algorithm takes this percentage calculation and 
multiplies it by the Reference Price. This calculation is then compared 
to the order's net cash constraint and determines if the allocation of 
the available contra side shares will violate the order's net cash 
constraint. If the calculation violates the net cash constraint, these 
shares will not be allocated to the contra side order but may be 
allocated to other eligible orders. This algorithmic process continues 
until all eligible orders are executed. There is no priority given to 
orders with a net cash constraint.
    The example below demonstrates how portfolios, with and without a 
net cash constraint, execute in MatchPoint. Specifically, the example 
illustrates the portfolios of users A, B and C in three different 
scenarios: The pre-match scenario, the post-match scenario with no net 
cash constraint and a post match scenario with a net cash constraint. 
In that third scenario, user B has a net cash constraint of plus or 
minus $1,000,000 (+/-$1,000,000). In the matching session, user B's 
portfolio cannot sell (raise) $1 million more than it buys (spends) and 
it cannot buy (spend) $1 million more than it sells (raises). Users A 
and C have no net cash constraints on their portfolios. Users A and B 
are on the same side of the market and user C represents the contra 
side interest in the matching session. User B entered orders first and 
would therefore receive any residual shares to be allocated. As 
previously mentioned, allocated shares are rounded down to the nearest 
100 shares.

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                 Side                             Symbol              Shares entered             Price
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                                                    PRE-MATCH
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User A Portfolio:
    Buy...............................  ABC.......................             67,600  MKT
    Buy...............................  QRS.......................             82,500  MKT
    Sell..............................  XYZ.......................             86,300  MKT
    Sell..............................  DEF.......................             41,200  MKT
User B Portfolio:
    Buy...............................  ABC.......................             47,600  MKT
    Buy...............................  QRS.......................             98,600  MKT
    Sell..............................  XYZ.......................             61,800  MKT
    Sell..............................  DEF.......................             62,200  MKT
User C Portfolio:
    Buy...............................  XYZ.......................            139,200  MKT
    Buy...............................  DEF.......................             88,800  MKT
    Sell..............................  ABC.......................            146,400  MKT
    Sell..............................  QRS.......................            258,300  MKT
----------------------------------------------------------------------------------------------------------------
                                     POST MATCH WITH NO NET CASH CONSTRAINTS
----------------------------------------------------------------------------------------------------------------
User A Portfolio:
    Buy...............................  ABC.......................             67,600  32.66
    Buy...............................  QRS.......................             82,500  23.55
    Sell..............................  XYZ.......................             81,100  38.71
    Sell..............................  DEF.......................             35,300  72.03
User B Portfolio:
    Buy...............................  ABC.......................             47,600  32.66
    Buy...............................  QRS.......................             98,600  23.55
    Sell..............................  XYZ.......................             58,100  38.71
    Sell..............................  DEF.......................             53,500  72.03
User C Portfolio:

[[Page 65792]]

 
    Buy...............................  XYZ.......................            139,200  38.71
    Buy...............................  DEF.......................             88,800  72.03
    Sell..............................  ABC.......................            115,200  32.66
    Sell..............................  QRS.......................            181,100  23.55
----------------------------------------------------------------------------------------------------------------
                                       POST MATCH WITH NET CASH CONSTRAINT
----------------------------------------------------------------------------------------------------------------
User A Portfolio:
    Buy...............................  ABC.......................             67,600  32.66
    Buy...............................  QRS.......................             82,500  23.55
    Sell..............................  XYZ.......................             86,300  38.71
    Sell..............................  DEF.......................             41,200  72.03
User B Portfolio:
+/-$1 Million Cash Constraint
    Buy...............................  ABC.......................             47,600  32.66
    Buy...............................  QRS.......................             98,600  23.55
    Sell..............................  XYZ.......................             45,500  38.71
    Sell..............................  DEF.......................             43,100  72.03
User C Portfolio:
    Buy...............................  XYZ.......................            131,800  38.71
    Buy...............................  DEF.......................             84,300  72.03
    Sell..............................  ABC.......................            115,200  32.66
    Sell..............................  QRS.......................            181,100  23.55
----------------------------------------------------------------------------------------------------------------

    As the example shows, the allocation of shares may vary 
significantly with and without the net cash constraint. User B's 
portfolio executes fewer shares with a net cash constraint than without 
the constraint. Users A and C, with no net cash constraints, are able 
to obtain more executions and have a more competitive position than 
user B when user B has a net cash constraint in place.
    Below is a chart comparing the post match customer net cash 
position results (i.e., total dollars raised and total dollars spent) 
from the example above.

----------------------------------------------------------------------------------------------------------------
                                                                 Post match 1     Post match 2     Post match 1
                                                                   Net cash         Net cash       and 2  Cash
                                                                   position         position        difference
----------------------------------------------------------------------------------------------------------------
Customer A...................................................      $1,535,220       $2,157,618         $622,398
Customer B...................................................      $2,222,139         $989,152   \12\($1,232,987
                                                                                                               )
Customer C...................................................     ($3,757,359)     ($3,146,770)       ($610,589)
----------------------------------------------------------------------------------------------------------------

    Post Match 1 reflects the net cash position for Customers A, B and 
C when their portfolios match with one another and when Customer B has 
no net cash constraint. Customer A raised $1,535,220 more than he 
spent; Customer B raised $2,222,139 more than he spent and Customer C 
spent $3,757,359 more than she raised.
---------------------------------------------------------------------------

    \12\ Numbers that appear in parentheses represent expenditures.
---------------------------------------------------------------------------

    Post Match 2 reflects the net cash position for Customers A, B and 
C when they match with one another and Customer B has a net cash 
constraint of plus or minus $1,000,000 (+/-$1,000,000). Customer B 
raised $989,152 more than he spent, which is within his net cash 
constraint of $1,000,000, but is $1,232,987 less than what he raised in 
Post Match 1 (when he had no net cash constraint). This shows the 
effect of Customer B's net cash constraint on his eligible portfolio 
orders, which limits the dollar amount that he can raise (or spend). 
The matching algorithm honors Customer B's net cash constraint before 
allocating shares.
    Customer B has an additional $10,848 that he could raise up to the 
$1 million constraint, but because the algorithmically calculated 
percentage of the available shares would violate his constraint if 
allocated, the available shares are not allocated to Customer B and he 
stops raising cash. The example demonstrates how the matching algorithm 
honors Customer B's net cash constraint before allocating shares.
    Further, in Post Match 2, Customer A raised $2,157,618 more than he 
spent and $622,398 more than he raised in Post Match 1. Customer A was 
able to match more shares because of Customer B's net cash constraint, 
which restricted Customer B's ability to raise or spend more than 
$1,000,000. Customer C spent $3,146,770 more than she raised and spent 
$610,589 less than she spent in Post Match 1. This reflects Customer 
A's ability to increase the number of his executions and Customer B's 
ability to limit the number of his executions through his net cash 
constraint.
    The above example also illustrates the following MatchPoint 
principles for net cash constraints: (1) A net cash constraint placed 
on a portfolio may affect the execution of other orders in the matching 
session by generally allowing additional shares for such other orders 
to be executed, and (2) net cash constraints will generally result in 
fewer executions of a portfolio and may inhibit the maximum order 
execution potential of a particular security in a particular matching 
session.

Price Collar Threshold in the After Hours Matching Session

    In the after hours matching session, the Exchange will place 
parameters on the prices of all MatchPoint eligible securities in order 
to dampen volatility and provide accurate pricing for executions. Such 
parameters will be referred to as a ``Price Collar Threshold.'' A Price 
Collar Threshold is an after hours market price beyond which a 
MatchPoint order will not be executed. The Price Collar Threshold will 
protect against unusual occurrences when the market has moved

[[Page 65793]]

significantly from the official closing price of the primary market 
based on information that becomes available after the market close. In 
this situation, the Exchange will cancel the after hours MatchPoint 
matching session rather than execute the matching session at a price 
that no longer reflects the market accurately. All unexecuted orders 
will be immediately cancelled back to the user upon completion of the 
matching session.
    The Price Collar Threshold will be set at a predetermined 
percentage of the MatchPoint after hours Reference Price. Initially, 
the Price Collar Threshold will be set at two percent (2%). Therefore, 
if the difference between the Price Collar Threshold and the 
consolidated last sale price of the security is two percent or more, 
the matching session in that particular security will not occur. All 
unexecuted orders will be cancelled back to the user upon completion of 
the scheduled matching session. For example, if the Reference Price of 
XYZ stock is $100, and at 4:45 p.m. the consolidated last sale price 
for XYZ stock is either $98 or less or $102 or more, the Price Collar 
Threshold will cause the stock to be halted in the after hours matching 
session.
    In the future, if the Exchange determines that the Price Collar 
Threshold should be adjusted in order to protect users and provide more 
accurate trades, the Exchange may make such adjustments, up to and 
including five percent (5%) of the MatchPoint after hours Reference 
Price. The Exchange will inform its users of such an adjustment via the 
NYSE MatchPoint Web site at http://www.nyse.com/MatchPoint and the 
Member Firm Notice, and notice of such adjustments will be provided to 
all users reasonably in advance of any such adjustments.

Locked and Crossed Markets

    If the NBBO for a particular security is locked at the time of a 
MatchPoint matching session during the regular trading hours of the 
Exchange, the matching session shall execute orders at the locked 
price. Unexecuted MatchPoint orders in that security shall be cancelled 
back to the user immediately upon completion of the matching session.
    If the NBBO for a particular security is crossed at the time of a 
MatchPoint matching session during the regular trading hours of the 
Exchange, the matching session in that particular security shall not 
occur. Unexecuted MatchPoint orders in that security shall be cancelled 
back to the user immediately upon completion of the matching session.

Trading Ahead of Customer Orders

    In the event a MatchPoint Order executes at the midpoint of the 
NBBO resulting in a Member or Member Organization's trading ahead of a 
held customer order at the same price, the Exchange believes that NYSE 
Rule 92 (Limitations on Member's Trading Because of Customers' Orders) 
may be implicated. NYSE Rule 92(a) generally restricts a Member or 
Member Organization from entering a proprietary order while in 
possession of a customer order. NYSE Rule 92(b) through (d) provides 
several exceptions to the general restrictions of Rule 92(a). When 
trading on the MatchPoint system, all users will be expected to comply 
with Rule 92(a) unless such trading falls within an applicable 
exception in NYSE Rule 92(b) through (d).

Halting, Suspending and Closing of NYSE MatchPoint Trading on the 
Exchange

    Trading on MatchPoint will be halted, suspended or closed \13\ when 
necessary in order to maintain a fair and orderly market, and in 
certain other conditions, as described below. If trading in a 
particular security is halted, suspended or closed due to regulatory or 
unusual market conditions at the time a matching session commences, the 
matching session will not occur in that security and all unexecuted 
orders will be immediately cancelled back to the user upon completion 
of the matching session.
---------------------------------------------------------------------------

    \13\ The use of the word ``close'' in the context of this rule 
refers to the intentional closing of the market due to regulatory or 
other unusual circumstances as described above, and does not refer 
to the predetermined ``close'' or end of the regular trading day at 
4 p.m.
---------------------------------------------------------------------------

    MatchPoint trading may be halted, suspended or closed when: (1) In 
the exercise of its regulatory capacity, the Exchange determines such 
action is necessary or appropriate to maintain a fair and orderly 
market, to protect investors, or otherwise is in the public interest 
due to extraordinary circumstances or unusual market conditions; (2) in 
the case of a particular security whenever, for regulatory purposes, 
trading in the related security has been halted, suspended or closed on 
the Exchange or the primary listing exchange; (3) in the case of a 
particular security trading on the Exchange pursuant to unlisted 
trading privileges, whenever, for regulatory purposes, trading in that 
security has been halted, suspended or closed on the primary listing 
exchange; (4) with respect to a particular security trading on the 
Exchange pursuant to unlisted trading privileges, if the authority 
under which a security trades on the Exchange or its primary market is 
revoked (i.e., because it is delisted); or (5) in the after hours 
matching session, news reports and/or corporate actions are disclosed 
after the close of the regular hours of the market that have a material 
impact on a particular security, which may include the following 
situations: (a) New corporate earnings; (b) major market index company 
deletions or additions; (c) corporate takeovers; (d) other significant 
corporate actions; (e) court decisions and injunctions; and (f) 
governmental announcements. No terms or conditions specified in this 
rule shall be interpreted to be inconsistent with any other rules of 
the Exchange.

Clearance and Settlement of MatchPoint Executions

    Details of each MatchPoint trade will be automatically matched and 
compared by the Exchange and will be submitted to a registered clearing 
agency for clearing and settlement on a locked-in basis.\14\ All 
executions effected by a Member or Member Organization will be cleared 
and settled using the Member's and Member Organization's account, and 
all executions effected by a Sponsored Participant will be cleared and 
settled using the relevant Sponsoring Member Organization's account.
---------------------------------------------------------------------------

    \14\ MatchPoint executions will be compared through the Regional 
Interface Organization Online process (``RIO Online''). RIO Online 
is NYSE Arca's internal processing interface that sends order 
execution information to the Depository Trust & Clearing Corporation 
(DTCC). RIO Online gathers the trades that are executed on any given 
day, places the trades into the appropriate message format and sends 
them to DTCC. RIO Online provides a record of all trades that were 
sent to DTCC. RIO Online is also used to manage any approved trade 
corrections.
---------------------------------------------------------------------------

    Because MatchPoint is an anonymous trading facility, the proposed 
rule will require MatchPoint transaction reports to indicate the 
details of the transaction, but not to reveal contra party and clearing 
firm identities,\15\ except under the following circumstances: (1) In 
the event the National Securities Clearing Corporation (``NSCC'') \16\ 
ceases to act for a Member or Member Organization, which is the 
unidentified contra side of any such trade processing, and/or the 
relevant clearing firm, the NYSE shall have the responsibility to 
identify to

[[Page 65794]]

Members or Member Organizations the trades included in reports produced 
by the NSCC which are with the affected Member or Member Organization, 
and (2) for regulatory purposes or to comply with an order of a court 
or arbitrator.
---------------------------------------------------------------------------

    \15\ Post-trade anonymity described herein has been previously 
approved by the Commission for other exchanges. See, e.g., 
Securities Exchange Act Release Nos. 48527 (September 23, 2003), 68 
FR 56361 (September 30, 2003) (SR-NASD-2003-85); and 49786 (May 28, 
2004), 69 FR 32087 (June 8, 2004) (SR-PCX-2004-40).
    \16\ The Exchange will submit completed MatchPoint trades for 
clearance and settlement to NSCC, which is a subsidiary of DTCC.
---------------------------------------------------------------------------

    The trade reports that the NSCC will receive from MatchPoint for 
anonymous trades will contain the identities of the parties to the 
trade. This measure will enable the NSCC to conduct its risk management 
functions and settle anonymous trades. The trade report sent to the 
NSCC will contain an indicator noting that the trade is anonymous. On 
the contract sheets the NSCC issues to its participants, the NSCC will 
substitute ``ANON'' for the acronym of the contra-party. The purpose of 
this masking is to preserve anonymity through settlement.
    The Exchange states that it will be able to maintain anonymity with 
respect to disputed or erroneous trades because the Exchange resolves 
disputes through a centralized process and conducts the process on 
behalf of its Members and Member Organizations.

Dissemination of Trading Information

    The MatchPoint system will report trade information to the 
Securities Information Processors for all MatchPoint eligible 
securities. Trades will be reported as one print for each security with 
the total volume of the transaction reported with the price. Market 
data for NYSE-listed securities will be disseminated via the 
consolidated tape pursuant to the Consolidated Tape Association Plan 
(``CTA Plan''). Trade reports of securities that are governed by the 
UTP Plan will be disseminated pursuant to the UTP Plan. All trades will 
indicate the market of execution as the NYSE for CTA and UTP purposes.

Member Organization and Non-Member Access to the NYSE MatchPoint System

    Members and Member Organizations of the Exchange are automatically 
eligible for access to MatchPoint by their membership on the Exchange. 
A non-member who wishes to trade securities on MatchPoint may do so as 
a ``Sponsored Participant'' of a Member Organization, i.e., 
``Sponsoring Member Organization,'' and must enter into a written 
agreement with the Sponsoring Member Organization and with the 
Exchange. As previously explained, all Members, Member Organizations 
and Sponsored Participants of Sponsoring Member Organizations must 
first obtain connectivity authorization before they can access 
MatchPoint.
    The proposed rule requires the Sponsoring Member Organization and 
the Sponsored Participant to enter into a sponsorship arrangement and 
maintain a written ``sponsorship agreement.'' The sponsorship agreement 
must be agreed to by both the Sponsoring Member Organization and the 
Sponsored Participant and include provisions for Authorized Traders. 
Such written agreement must include the Sponsoring Member's consent to 
sponsor the Sponsored Participant. The proposed sponsorship agreement 
must also include the following provisions:

Sponsorship Provisions

    (A) Sponsored Participant and its Sponsoring Member Organization 
must have entered into and maintained a written agreement with the 
Exchange. The Sponsoring Member Organization must designate the 
Sponsored Participant by name in its written agreement as such.
    (B) Sponsoring Member Organization acknowledges and agrees that:
    (i) All orders entered by the Sponsored Participants and any person 
acting on behalf of or in the name of such Sponsored Participant and 
any executions occurring as a result of such orders are binding in all 
respects on the Sponsoring Member Organization and
    (ii) Sponsoring Member Organization is responsible for any and all 
actions taken by such Sponsored Participant and any person acting on 
behalf of or in the name of such Sponsored Participant.
    (C) Sponsoring Member Organization shall comply with the rules of 
the Exchange, the rules and procedures with regard to MatchPoint and 
Sponsored Participant shall comply with the rules of the Exchange and 
the rules and procedures with regard to MatchPoint, as if Sponsored 
Participant were a Sponsoring Member Organization.
    (D) Sponsored Participant shall maintain, keep current and provide 
to the Sponsoring Member Organization a list of Authorized Traders who 
may obtain access to the MatchPoint on behalf of the Sponsored 
Participant.
    (E) Sponsored Participant shall familiarize its Authorized Traders 
with all of the Sponsored Participant's obligations under this Rule and 
will assure that they receive appropriate training prior to any use or 
access to MatchPoint.
    (F) Sponsored Participant may not permit anyone other than 
Authorized Traders to use or obtain access to MatchPoint.
    (G) Sponsored Participant shall take reasonable security 
precautions to prevent unauthorized use or access to MatchPoint, 
including unauthorized entry of information into MatchPoint, or the 
information and data made available therein. Sponsored Participant 
understands and agrees that Sponsored Participant is responsible for 
any and all orders, trades and other messages and instructions entered, 
transmitted or received under identifiers, passwords and security codes 
of Authorized Traders, and for the trading and other consequences 
thereof.
    (H) Sponsored Participant acknowledges its responsibility to 
establish adequate procedures and controls that permit it to 
effectively monitor its employees, agents and customers' use and access 
to MatchPoint for compliance with the terms of this agreement.
    (I) Sponsored Participant shall pay when due all amounts, if any, 
payable to Sponsoring Member Organization, MatchPoint or any other 
third parties that arise from the Sponsored Participants access to and 
use of MatchPoint. Such amounts include, but are not limited to 
applicable exchange and regulatory fees.
    (J) Sponsored Participant shall maintain and keep current all 
records and documents relating to its trading activities on MatchPoint, 
and shall provide all such records and documents to the Sponsoring 
Member Organization upon request.

Notice of Consent to the Exchange

    (A) The Sponsoring Member Organization must provide the Exchange 
with a notice of consent acknowledging its responsibility for the 
orders, executions and actions of its Sponsored Participant at issue 
prior to providing the Sponsored Participant with authorized access to 
MatchPoint.

Authorized Traders

    (A) Sponsoring Member Organization shall maintain a list of 
Authorized Traders who may obtain access to MatchPoint on behalf of the 
Sponsoring Member Organization or the Sponsoring Member Organization's 
Sponsored Participants. The Sponsoring Member Organization shall update 
the list of Authorized Traders as necessary. Sponsoring Member 
Organizations must provide the list of Authorized Traders to the 
Exchange upon request.
    (B) A Sponsoring Member Organization must have reasonable 
procedures to ensure that all Authorized Traders comply with the 
trading rules and procedures related to MatchPoint and all other rules 
of the Exchange.
    (C) A Sponsoring Member Organization must suspend or withdraw a 
person's status as an Authorized Trader if the Exchange has determined 
that the person has caused the

[[Page 65795]]

Sponsoring Member Organization to fail to comply with the rules of the 
Exchange and the Exchange has directed the Sponsoring Member 
Organization to suspend or withdraw the person's status as an 
Authorized Trader.
    (D) A Sponsoring Member Organization must have reasonable 
procedures to ensure that an Authorized Trader maintain the physical 
security of the equipment for accessing the facilities of MatchPoint to 
prevent the improper use or access to the system, including 
unauthorized entry of information into the system.

Limitations on the Use of MatchPoint

    (A) Specialists on the Floor of the Exchange are not authorized to 
access MatchPoint. The off-Floor operations of specialist firms may 
obtain authorized access to MatchPoint provided they have policies and 
procedures and barriers in place that preclude improper information 
sharing between the specialist firm and the firm's specialist on the 
Floor of the Exchange.\17\
---------------------------------------------------------------------------

    \17\ Currently, all specialist organizations on the Exchange 
utilize information barrier procedures pursuant to NYSE Rule 98 
(Restrictions on Approved Person Associated with a Specialist's 
Member Organization). Information barrier procedures that would be 
utilized to block access by a specialist to any MatchPoint trading 
information generated by the off-Floor personnel of the specialist 
organization would be similar in design and utilization.
---------------------------------------------------------------------------

    (B) Members who have authorized access to MatchPoint are not 
permitted to enter orders into the MatchPoint system from the Floor of 
the Exchange when such orders are for their own accounts, the accounts 
of associated persons, or accounts over which it or an associated 
person exercises investment discretion. Similarly, Members on the Floor 
may not have such orders entered into MatchPoint by sending them to an 
off-Floor facility for entry. Members with authorized access to 
MatchPoint may only enter customer orders into MatchPoint from the 
Floor of the Exchange. Members that have authorized access to 
MatchPoint may enter proprietary and customer orders into MatchPoint 
from off the Floor of the Exchange.

Applicability of Section 11(a) and (b) of the Act

    Section 11(a) of the Act prohibits a member of a national 
securities exchange from effecting transactions on that exchange for 
its own account, the account of an associated person, or an account 
over which it or its associated person exercises investment discretion, 
unless an exception applies. The ``Effect versus Execute Rule,'' as 
Rule 11a2-2(T) under the Act is known, permits an exchange member, 
subject to certain conditions, to effect a transaction for such 
accounts, utilizing an unaffiliated member to execute transactions on 
the exchange floor. The Rule requires that: (1) The order must be 
transmitted from off-floor; (2) once the order has been transmitted, 
the member may not participate in the execution; (3) the transmitting 
member may not be affiliated with the executing member; and (4) neither 
the member or associated person may retain any compensation in 
connection with effecting such transaction, respecting accounts over 
which either has investment discretion, without the express written 
consent of the person authorized to transact business for the account. 
The Exchange requests interpretation that MatchPoint orders entered 
from off-floor comply with the following provisions of the Rule:
    1. Off -Floor Transmissions: Orders are electronically entered into 
the MatchPoint system from on and off the Floor of the Exchange; 
however, Members are not permitted to enter orders into the MatchPoint 
system from the Floor of the Exchange when such orders are for their 
own accounts, the accounts of associated persons, or accounts over 
which it or an associated person exercises investment discretion. Also, 
specialists on the Floor are not permitted to enter any orders into the 
MatchPoint system and they do not have access to the MatchPoint system 
from the Floor, as described in more detail below. However, 
``upstairs'' specialist firms are permitted to be MatchPoint users and 
may enter orders from off the Floor provided such firms have adequate 
policies, procedures and ``barriers'' in place between the upstairs 
firm and the Floor specialists, which will preclude improper sharing of 
trading information.
    2. Non-Participation in Order Execution: In accordance with Rule 
11a2-2(T), once orders are entered into the MatchPoint system, a member 
may not participate in, guide or influence the execution of such 
orders. MatchPoint orders are sent by electronic means (i.e., FIX 
application or an internet-based application) to the MatchPoint trading 
platform. Users may enter, correct or cancel MatchPoint orders any time 
prior to the commencement of a matching session. However, once the 
matching session has commenced, the system will not permit a user to 
affect the order or its execution in any way. Thus, when the matching 
session commences, the member relinquishes all control of MatchPoint 
orders. Users have no special or unique order handling or trading 
advantages when trading on MatchPoint.
    3. Affiliated Executing Members: Rule 11a2-2(T) provides that the 
transmitting member may not be affiliated with the executing member. 
The Commission has previously recognized that this requirement may be 
satisfied when automated exchange facilities are used.\18\ MatchPoint 
is a fully automated, electronic trading facility. As described above, 
MatchPoint orders are sent by electronic means to the MatchPoint 
trading platform. Matching sessions commence automatically at a 
predetermined time. Matching, trading and pricing of orders is 
effectuated through an algorithm, which does not permit entry, 
correction or cancellation of orders during the matching session. At 
the completion of a matching session, transaction reports, including 
order cancellation reports for orders that were not executed, are sent 
back to the user. Reference Prices are derived from outside sources. 
The intra-day Reference price is the midpoint of the NBBO, and the 
after hours Reference Price is the official closing price or last sale 
price of a particular security.
---------------------------------------------------------------------------

    \18\ In considering the operation of automated execution systems 
by an exchange, the Commission has noted in the past that the 
execution of an order is automatic once it has been transmitted into 
a system, and therefore satisfies the independent execution 
requirement of rule 11a2-2(T). See, e.g., Securities Exchange Act 
Release Nos. 49068 (January 13, 2004), 69 FR 2775 (January 20, 2004) 
(order approving the Boston Options Exchange as an options trading 
facility of the Boston Stock Exchange); 29237 (May 24, 1991), 56 FR 
24853 (May 31, 1991) (regarding NYSE's Off-Hours Trading Facility); 
and 53128 (January 13, 2006), 71 FR 3550 (January 23, 2006) (File 
No. 10-131).
---------------------------------------------------------------------------

    The Exchange believes that MatchPoint complies with the 
``Affiliated Executing Member'' provision of Rule 11a2-2(T) because the 
automatic execution function of MatchPoint ensures that all authorized 
MatchPoint users have the same abilities with respect to entering 
orders, and no users can effect an order once the matching session has 
commenced. The design of the MatchPoint system ensures that members do 
not possess any special or unique trading advantages in the handling of 
orders. Thus, the Rule's provision respecting the use of affiliated 
members to execute orders is not implicated by the MatchPoint system.
    4. Non-Retention of Compensation: The Exchange represents that 
members that rely on Rule 11a2-2(T) for a managed account transaction 
must comply with the limitations on compensation set forth in the rule.
    Section 11(b) of the Act and Rule 11b-1 thereunder, which pertains 
to

[[Page 65796]]

specialists, are not applicable to the operation of the MatchPoint 
system for several reasons. First, as stated above, specialists on the 
Floor of the Exchange are not able to access MatchPoint. MatchPoint can 
only be accessed through an electronic FIX application and/or an 
internet based, password-protected order entry application, which are 
not available to individual specialists on the Floor. Although the 
upstairs firms that employ specialists are able to access MatchPoint 
through these two applications, such firms must be authorized to access 
MatchPoint, and the firms must have policies and procedures and 
information barriers in place to preclude the improper sharing of 
trading information between the specialists on the Floor and in the 
upstairs firm. Further, the specialist firms will be subject to 
examinations by the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') as agent for NYSE Group pursuant to a Regulatory Services 
Agreement dated July 30, 2007, to ensure that such policies and 
procedures and information barriers are in place and are adequate to 
preclude improper sharing of trading information.
    Specifically, FINRA examiners will perform an on-site review of the 
combined specialist firm's written policies and procedures and 
determine if they are adequate in relation to trading on MatchPoint. In 
addition, FINRA will interview appropriate individuals both within the 
affected departments as well as other areas of the specialist firm to 
determine whether firm policies have been appropriately disseminated 
and appear to be followed in relation to MatchPoint trading. The 
examination will also determine whether there have been any apparent 
breaches of the information barriers.
    Second, the MatchPoint system is independent of all other 
electronic trading platforms, including the specialists' API 
(``Application Programmed Interface'') which is also known as the 
specialists' ``algorithm.'' As a consequence, the specialists' 
algorithm cannot interface with the MatchPoint system and has no access 
to order entry information or MatchPoint market data. Similarly, the 
individual specialist on the Floor has no MatchPoint order entry 
information or MatchPoint market data. Without access to MatchPoint and 
without access to MatchPoint order entry information and market data, 
specialists will not be able to manipulate MatchPoint trading.
    Third, the Exchange has an internal authorization process that 
authorizes MatchPoint users to access MatchPoint through the FIX 
application and internet by providing an authorized user name and 
protected password. Individual specialists on the Floor will not be 
authorized through the internal process. Upstairs firms that employ 
specialists may be authorized to access MatchPoint through MatchPoint's 
internal authorization process, provided, as noted above, FINRA, as 
agent for NYSE Group, examines such firms to ensure that policies, 
procedures and barriers are in place and are adequate to preclude 
improper sharing of trading information.
    Therefore, because specialists on the Floor do not have access to 
the MatchPoint system or MatchPoint order information, and because the 
specialist firms are subject to regulatory examinations to ensure the 
integrity of information barriers between the firms and their 
specialists on the Floor, the Exchange believes that section 11(b) of 
the Act and Rule 11b-1 thereunder, which pertains to specialists, is 
not applicable to the operation of the MatchPoint system.

Regulation of the MatchPoint System

    The Exchange notes that NYSE Regulation represents that it has 
appropriate policies and procedures in place to adequately and 
effectively regulate the MatchPoint system. A surveillance plan 
describing the various surveillances that will be in place to monitor 
the operation of MatchPoint has been submitted to the Commission under 
separate cover, and will be implemented prior to any trading on the 
MatchPoint system. Also, FINRA, as agent for NYSE Group, will perform 
examinations of specialist firms that trade on MatchPoint as described 
above.
2. Statutory Basis
    The Exchange states that the statutory basis for proposed rule 
change is the requirement under section 6(b)(5) \19\ of the Act that an 
Exchange have rules that are designed to promote just and equitable 
principles of trade, 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.
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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.

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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

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 NYSE 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-NYSE-2007-102 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

    All submissions should refer to File Number SR-NYSE-2007-102. 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

[[Page 65797]]

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, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of the NYSE. 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-NYSE-2007-102 and should be 
submitted on or before December 14, 2007.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
---------------------------------------------------------------------------

    \20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-22782 Filed 11-21-07; 8:45 am]
BILLING CODE 8011-01-P