Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Guidance for Adjudicating Clearly Erroneous Transactions Under Rule 11890, 71208-71213 [E6-20806]

Download as PDF 71208 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices Electronic Comments applicable to the other securities transactions currently processed through the Canadian-Link Service. Statutory Basis for the Proposed Rule Change Section 17A(a)(3)(F) of the Act requires that the rules of a registered clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions and to assure the safeguarding of securities and funds which are in its possession or control or for which it is responsible. The proposed enhancement to the Canadian-Link Service should promote the prompt and accurate clearance and settlement of cross-border securities transactions between DTC Participants and CDS Participants and between DTC Participants and other DTC Participants in a secure, efficient, and regulated environment. B. Self-Regulatory Organization’s Statement on Burden on Competition DTC does not believe that the proposed rule change will impose any burden on competition. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments relating to the proposed rule change have been solicited or received by DTC from members, participants, or other persons. DTC will notify the Commission of any written comments it receives. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within thirty five 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 ninety 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 self-regulatory organization consents, the Commission will: (a) By order approve the proposed rule change or, (b) Institute proceedings to determine whether the proposed rule change should be disapproved. sroberts on PROD1PC70 with NOTICES 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: VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–DTC–2006–15 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. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–54854; File No. SR– NASDAQ–2006–046] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Guidance for Adjudicating Clearly Erroneous Transactions Under Rule 11890 December 1, 2006. 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 All submissions should refer to File 7, 2006, The NASDAQ Stock Market Number SR–DTC–2006–15. This file LLC (‘‘Nasdaq’’), filed with the number should be included on the Securities and Exchange Commission subject line if e-mail is used. To help the (‘‘Commission’’) the proposed rule Commission process and review your change as described in Items I and II comments more efficiently, please use below, which Items have been prepared only one method. The Commission will by Nasdaq. Nasdaq filed the proposal as post all comments on the Commission’s a ‘‘non-controversial’’ rule change Internet Web site (http://www.sec.gov/ pursuant to Section 19(b)(3)(A) of the rules/sro.shtml). Copies of the Act,3 and Rule 19b–4(f)(6) thereunder,4 submission, all subsequent which renders the proposal effective amendments, all written statements upon filing with the Commission. The with respect to the proposed rule Commission is publishing this notice to change that are filed with the solicit comments on the proposed rule Commission, and all written change from interested persons. communications relating to the I. Self-Regulatory Organization’s proposed rule change between the Statement of the Terms of Substance of Commission and any person, other than the Proposed Rule Change those that may be withheld from the Nasdaq is providing guidance public in accordance with the regarding factors it generally considers provisions of 5 U.S.C. 552, will be in adjudicating clearly erroneous available for inspection and copying in transactions under Nasdaq Rule 11890. the Commission’s Public Reference The text of the proposed rule change Room. Copies of the filing also will be is below. Proposed new language is in available for inspection and copying at italics. the principal office of DTC. All * * * * * comments received will be posted without change; the Commission does IM–11890–4. Clearly Erroneous not edit personal identifying Transaction Guidance for Filings under Rule 11890(a) and Single Stock Events information from submissions. You under Rule 11890(b) should submit only information that you wish to make available publicly. All Nasdaq is providing the following submissions should refer to File guidance on how it generally considers: Number SR–DTC–2006–15 and should • All complaints filed by market be submitted on or before December 29, participants under Rule 11890(a); and • Many events involving a single 2006. security considered on Nasdaq’s own For the Commission, by the Division of motion pursuant to Rule 11890(b). Market Regulation, pursuant to delegated Nasdaq generally considers a 4 authority. transaction to be clearly erroneous when Florence E. Harmon, the print is substantially inconsistent Deputy Secretary. with the market price at the time of [FR Doc. E6–20868 Filed 12–7–06; 8:45 am] execution. In making such a determination, Nasdaq takes into BILLING CODE 8011–01–P account the circumstances at the time of 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b–4(f)(6). 2 17 4 17 PO 00000 CFR 200.30–3(a)(12). Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\08DEN1.SGM 08DEN1 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices the transaction, the maintenance of a fair and orderly market, and the protection of investors and the public interest. Participants in Nasdaq are responsible for ensuring that the appropriate price and type of order are entered into Nasdaq’s systems. Simple assertion by a firm that it made a mistake in entering an order or a quote, or that it failed to pay attention or to update a quote, may not be sufficient to establish that a transaction was clearly erroneous. 71209 Numerical factors for review Nasdaq primarily considers the execution price of a trade in determining whether it is clearly erroneous. Execution price Range away from reference price $1.75 and under ....................................................................................... Equal to or greater than the minimum threshold required for adjudication under Rule 11890(a)(2)(C)(ii). 10% 5% 3% Over $1.75 and up to $25 ........................................................................ Over $25 and up to $50 ........................................................................... Over $50 ................................................................................................... Nasdaq uses different Reference Prices based on the time of the trade and the listing venue of the security in order to establish an appropriate comparison point. These Reference Prices are detailed below. In unusual circumstances, however, Nasdaq may use a different Reference Price. Time of trade and listing venue Reference price Nasdaq-listed securities for trades executed between 9:30 am and 4 pm Eastern Time (‘‘Regular Session’’). Non-Nasdaq-listed securities for trades executed during Regular Session and after primary market has posted first two-sided quote. Non-Nasdaq-listed securities for trades executed during Regular Session and before primary market has posted first two-sided quote. The best bid (best offer) (‘‘BBO’’) in Nasdaq at the time of execution of first share of the disputed order. The national BBO at the time of execution of first share of the disputed order. The national BBO at the time of execution of first share of the disputed order. If national BBO does not appear substantially related to market, Nasdaq may consider other Reference Prices including the opening trade, indication of interest and first two-sided quote in the primary market (which may occur after the execution) and the closing price for the prior Regular Session for the security’s primary market. Closing price of security for the last Regular Session on the security’s primary market. Nasdaq-listed and non-Nasdaq-listed securities for trades executed after 4 pm and before 9:30 am Eastern Time. Additional Factors sroberts on PROD1PC70 with NOTICES In occasional circumstances, Nasdaq may consider additional factors in determining whether a transaction is clearly erroneous. These include: • Material news released for the security • Suspicious trading activity • System malfunctions or disruptions • Locked or crossed markets • Trading in the security was recently halted/resumed • The security is an initial public offering • Volume and volatility for the security • Stock-split, reorganization or other corporate action. • Validity of consolidated tape trades and quotes and Nasdaq BBO comparison to national BBO. • General volatility of market conditions. • Reason for the error. Additional Information Concerning Rule 11890(b) Nasdaq may on its own motion review transactions in any security in the event of: • A disruption or malfunction in the use or operation of any quotation, VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 execution, communication, or trade reporting system owned or operated by Nasdaq and approved by the SEC; • Extraordinary market conditions or other circumstances in which the nullification or modification of transactions may be necessary for the maintenance of a fair and orderly market or the protection of investors and the public interest. Consequently, Rule 11890(b) is focused on systemic problems that involve large numbers of parties or trades, or market conditions where it would not be in the best interests of the market to proceed under the processes set forth in Rule 11890(a). Sometimes events involving a single security will meet the standards of Rule 11890(b). However, market participants should not assume that Rule 11890(b) will be available where, for example, they failed to file a complaint within the time periods specified in Rule 11890(a). The rule could be available, however, in cases where a trade not eligible for adjudication under Rule 11890(a) nevertheless could present systemic risks if permitted to stand. The guidance set forth in IM–11890– 4 applies to many events involving a single security adjudicated pursuant to PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 Rule 11890(b). However, Nasdaq may apply the guidance set forth in IM 11890–5 to some events involving a single security, such as some situations where trading activity occurs in multiple market centers and Nasdaq is acting in consultation with other markets. IM–11890–5. Clearly Erroneous Transaction Guidance for Multi-Stock Events Under Rule 11890(b) Nasdaq is providing the following guidance on how it generally considers multi-stock events adjudicated on Nasdaq’s own motion pursuant to Rule 11890(b). Nasdaq generally considers a transaction to be clearly erroneous when the print is substantially inconsistent with the market price at the time of execution. In making such a determination, Nasdaq takes into account the circumstances at the time of the transaction, the maintenance of a fair and orderly market, and the protection of investors and the public interest. Participants in Nasdaq are responsible for ensuring that the appropriate price and type of order are entered into Nasdaq’s systems. Simple assertion by a firm that it made a mistake in entering an order or a quote, E:\FR\FM\08DEN1.SGM 08DEN1 71210 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices or that it failed to pay attention or to update a quote, may not be sufficient to establish that a transaction was clearly erroneous. Nasdaq may on its own motion review transactions in any security in the event of: • A disruption or malfunction in the use or operation of any quotation, execution, communication, or trade reporting system owned or operated by Nasdaq and approved by the SEC; or • Extraordinary market conditions or other circumstances in which the nullification or modification of transactions may be necessary for the maintenance of a fair and orderly market or the protection of investors and the public interest. Consequently, Rule 11890(b) is focused on systemic problems that involve large numbers of parties or trades, or market conditions where it would not be in the best interests of the market to proceed under the processes set forth in Rule 11890(a). Even in cases involving multiple securities, however, market participants should not assume that Rule 11890(b) will be available where, for example, they failed to file a complaint within the time periods specified in Rule 11890(a). The rule could be available, however, in cases where a trade not eligible for adjudication under Rule 11890(a) nevertheless could present systemic risks if permitted to stand. The determination of whether to adjudicate an event under Rule 11890(b) is made by Nasdaq in its sole discretion pursuant to the terms of the rule. Numerical Factors for Review Nasdaq primarily considers the execution prices of the trades in question in determining whether trades should be nullified in a multi-stock event pursuant to Rule 11890(b). Generally all trades more than 10% away from the Reference Price would be clearly erroneous. NASDAQ uses different Reference Prices based on time of the trade in order to establish an appropriate comparison point. These Reference Prices are detailed below. In unusual circumstances, however, Nasdaq may use a different Reference Price. Time of trade Reference price All trades executed after the opening of trading during regular market hours and until the end of regular market hours. For Nasdaq-listed securities, the best bid (best offer) (‘‘BBO’’) in Nasdaq at the time of execution of first share of the disputed order. For Non-Nasdaq-listed securities, the national BBO at the time of execution of first share of the disputed order. The closing price of the security for regular market hours on the security’s primary market. All securities for trades executed: • after 4 p.m., Eastern Time (ET) • before 9:30 a.m., ET • during the market opening process for regular market hours In occasional circumstances, Nasdaq may consider additional factors in determining whether the transactions are clearly erroneous. These include: • Material news released for individual securities • Suspicious trading activity Nasdaq may also apply the guidance set forth in IM 11890–5 to some events involving a single security, such as some situations where trading activity occurs in multiple market centers and Nasdaq is acting in consultation with other markets. * * * * * sroberts on PROD1PC70 with NOTICES II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Nasdaq is adopting Interpretive Material under Nasdaq Rule 11890 to provide guidance with regard to its consideration of transactions that may be clearly erroneous. Paragraph (a) of Nasdaq Rule 11890 allows market participants to petition Nasdaq to nullify or modify trades that they allege to be clearly erroneous. Paragraph (b) allows Nasdaq to nullify or modify trades on its own motion in the event of a disruption or malfunction in the use or operation of Nasdaq systems or extraordinary market conditions or other circumstances in which the nullification or modification of transactions may be necessary for the maintenance of a fair and orderly market or the protection of investors and the public interest. Nasdaq is providing one set of Interpretive Material relating to Nasdaq Rule 11890(a) and many events involving a single stock under Rule 11890(b), and a second set of Interpretive Material relating to events involving multiple stocks under Nasdaq Rule 11890(b). In each case, the Interpretive Material is intended to provide market participants with insights into the factors generally PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 considered by Nasdaq in determining whether to nullify or modify trades under the rule.5 At its basic level, Nasdaq Rule 11890 is intended to allow Nasdaq to adjudicate disputes between firms as to the status of a trade, with a goal of preventing unjust enrichment of one market participant at the expense of another in circumstances where the terms of a trade are clearly out of line with objective market conditions for a security. Thus, Nasdaq Rule 11890(a) allows the party that believes it made a significant error to petition for an adjudication, and in appropriate circumstances, to be relieved of the obligation to settle the trade. The rule may not be used as an insurance policy against trades that merely lose money, however. Accordingly, the NASD’s 5 The Interpretive Material includes language relating to trades in non-Nasdaq securities. Although Nasdaq is not yet operative as an exchange in these securities, Nasdaq is filing this language in anticipation of an operational date for these securities in the near future. Because Nasdaq’s parent company, The Nasdaq Stock Market, Inc. (‘‘Nasdaq Inc.’’), currently trades non-Nasdaq securities pursuant to authority delegated by the National Association of Securities Dealers, Inc. (‘‘NASD’’) and administers NASD Rule 11890 with respect to these securities pursuant to that delegation, Nasdaq Inc. is also filing a version of the Interpretive Material as an NASD Rule. See SR– NASD–2006–123 (November 7, 2006). E:\FR\FM\08DEN1.SGM 08DEN1 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices predecessor rule was amended in 2005 6 to establish a conclusive presumption that a trade is not eligible for review under Nasdaq Rule 11890(a) unless its price deviates from the inside market for the security by an amount in excess of certain bright-line numerical thresholds. This aspect of the rule reflects the view that it is preferable to promote market certainty and accountability by market participants by allowing all trades close to the inside market to stand, even if a particular trade may arguably have been caused by a market participant error. Nevertheless, in an environment of continual increases in the scope and speed of electronic trading, Nasdaq Rule 11890(b) provides an important safeguard against market disruptions caused by trader errors or system malfunctions that result in executions affecting multiple market participants and/or securities. Thus, Nasdaq Rule 11890(b) mitigates systemic risk by providing a mechanism to break erroneous trades that may have a serious detrimental effect on one or more market participants. Nasdaq Rule 11890(b) has been used both with respect to events affecting a single stock, as where an erroneous order causes a large number of trades involving multiple market participants to execute, and events affecting multiple stocks, as where a system malfunction results in a more widespread problem. Because of its focus on system malfunctions and overall market integrity, market participants should not assume that Nasdaq Rule 11890(b) will be used where, for example, they failed to file a complaint within the time periods specified in Nasdaq Rule 11890(a). However, the rule could be available in cases where a trade not eligible for adjudication under Nasdaq Rule 11890(a) nevertheless could present systemic risks if permitted to stand. Thus, for example, if a firm’s erroneous trades had the potential to cause a firm’s insolvency but its petition was untimely, Nasdaq might consider using Nasdaq Rule 11890(b)(ii) to prevent the insolvency.7 Thus, under both parts of the rule, Nasdaq strives to strike a balance between certainty and flexibility, to ensure that (i) similar situations are addressed in a similar manner, (ii) market participants do not attempt to use the rule to attain unfair advantage, and (iii) the rule is not written or construed in a way that may prevent action necessary to protect market quality or prevent systemic problems and thereby maintain a fair and orderly market and protect investors and the public interest. With these considerations in mind, Nasdaq believes that the Interpretive Material allows market participants to achieve a better understanding of Nasdaq’s application of the rule without limiting its adaptability. In effect, the Interpretive Material describes Nasdaq’s understanding of the precedents that have emerged through years of adjudications under the rule; as with 71211 judicial precedents, they serve as a guide to future cases without constricting adaptability to new or unique fact patterns. Both sets of Interpretive Material reflect that Nasdaq generally considers a transaction to be clearly erroneous when the print is substantially inconsistent with the market price at the time of execution. In making such a determination, Nasdaq takes into account the circumstances at the time of the transaction, the maintenance of a fair and orderly market, and the protection of investors and the public interest. The Interpretive Material also stresses that participants in Nasdaq are responsible for ensuring that the appropriate price and type of order are entered into Nasdaq’s systems. Simple assertion by a firm that it made a mistake in entering an order or a quote, or that it failed to pay attention or to update a quote, may not be sufficient to establish that a transaction was clearly erroneous. IM–11890–4 concerns all complaints filed by market participants under Nasdaq Rule 11890(a), as well as many events involving a single security considered on Nasdaq’s own motion pursuant to Nasdaq Rule 11890(b). Nasdaq primarily considers the execution price of a trade in determining whether it is clearly erroneous. Specifically, Nasdaq generally uses the following guidelines: 8 Execution price Range away from reference price $1.75 and under ....................................................................................... Equal to or greater than the minimum threshold required for adjudication under Rule 11890(a)(2)(C)(ii). 10 percent. 5 percent. 3 percent. Over $1.75 and up to $25 ........................................................................ Over $25 and up to $50 ........................................................................... Over $50 ................................................................................................... sroberts on PROD1PC70 with NOTICES Thus, the degree of deviation from a specified reference price needed for a trade to be declared clearly erroneous depends on the execution price: securities trading at lower prices require a higher percentage deviation before they will be considered clearly erroneous, since the normal daily trading ranges for these securities generally involve larger percentage movements. In the case of securities priced at $1.75 or below, a trade will generally be considered clearly erroneous if it is eligible for adjudication at all under the minimum thresholds under Nasdaq Rule 11890(a)(2)(C)(ii), since these thresholds require significant percentage deviation before a low-priced trade is eligible. Nasdaq uses different Reference Prices based on time of the trade and the listing venue of the security in order to establish an appropriate comparison point. These Reference Prices are detailed below. In unusual circumstances, however, Nasdaq may use a Reference Price not specifically described in the Interpretive Material. For example, in a case where material news about a security was released after market close for the security and a trade occurring after 4 p.m. and before 9:30 a.m. is at issue, it may be more appropriate to use a Reference Price derived from after-hours trading activity than to use the closing price of the security. Similarly, in the case of several large orders that execute at multiple prices, a Reference Price based on a weighted average of the BBO at relevant times may be more appropriate than a Reference Price based solely on the BBO 6 See Securities Exchange Act Release No. 52141 (July 27, 2005), 70 FR 44709 (August 3, 2005) (SR– NASD–2004–009). 7 As is the case in all instances where a firm’s erroneous trades raise questions as to the adequacy of its internal controls, Nasdaq would also refer the firm for investigation by the NASD in its capacity as Nasdaq’s regulatory services provider. 8 Nasdaq stated that at all execution prices, the guidelines are equal to or greater than the minimum threshold required for adjudication under Rule 11890(a)(2)(C)(ii). Telephone conversation by and between John Yetter, Senior Associate General Counsel, Nasdaq, and Terri Evans, Special Counsel and David Hsu, Special Counsel, Division of Market Regulation, Commission, on November 17, 2006. VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\08DEN1.SGM 08DEN1 71212 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices immediately prior to the execution of the first share of the order. Time of trade and listing venue Reference price Nasdaq-listed securities for trades executed between 9:30 a.m. and 4 p.m. Eastern Time (‘‘Regular Session’’). Non-Nasdaq-listed securities for trades executed during Regular Session and after primary market has posted first two-sided quote. Non-Nasdaq-listed securities for trades executed during Regular Session and before primary market has posted first two-sided quote. The best bid (best offer) (‘‘BBO’’) in Nasdaq at the time of execution of first share of the disputed order. The national BBO at the time of execution of first share of the disputed order. The national BBO at the time of execution of first share of the disputed order. If national BBO does not appear substantially related to market, Nasdaq may consider other Reference Prices including the opening trade, indication of interest and first two-sided quote in the primary market (which may occur after the execution) and the closing price for the prior Regular Session for the security’s primary market. Closing price of security for the last Regular Session on the security’s primary market. Nasdaq-listed and non-Nasdaq-listed securities for trades executed after 4 p.m. and before 9:30 a.m. Eastern Time. In occasional circumstances, Nasdaq may consider additional factors in determining whether a transaction is clearly erroneous. These include: • Material news released for the security. • Suspicious trading activity. • System malfunctions or disruptions. • Locked or crossed markets. • Trading in the security was recently halted/resumed. • The security is an initial public offering. • Volume and volatility for the security. • Stock-split, reorganization or other corporate action. • Validity of consolidated tape trades and quotes and Nasdaq BBO comparison to national BBO. • General volatility of market conditions. • Reason for the error. IM–11890–5 concerns multi-stock events adjudicated on Nasdaq’s own motion pursuant to Nasdaq Rule 11890(b). In such cases, Nasdaq primarily considers the numerical factors of the execution prices in determining whether trades should be nullified. Generally all trades more than 10% away from the Reference Price would be clearly erroneous.9 Nasdaq uses different Reference Prices based on time of the trade in order to establish an appropriate comparison point. These Reference Prices are detailed below. In unusual circumstances, however, Nasdaq may use a different Reference Price. Time of trade Reference price All trades executed after the opening of trading during regular market hours and until the end of regular market hours. For Nasdaq-listed securities, the best bid (best offer) (‘‘BBO’’) in Nasdaq at the time of execution of first share of the disputed order. For Non-Nasdaq-listed securities, the national BBO at the time of execution of first share of the disputed order. The closing price of the security for regular market hours on the security’s primary market. sroberts on PROD1PC70 with NOTICES All securities for trades executed: • after 4 p.m., Eastern Time (ET) • before 9:30 a.m., ET • during the market opening process for regular market hours In occasional circumstances, Nasdaq may consider additional factors in determining whether the transactions in a multi-stock event are clearly erroneous, including material news released for individual securities or suspicious trading activity. The guidance set forth in IM–11890– 4 will apply to many events involving a single security adjudicated pursuant to Nasdaq Rule 11890(b). However, Nasdaq may apply the guidance set forth in IM– 11890–5 to some events involving a single security, such as some situations where trading activity occurs in multiple market centers and Nasdaq is acting in consultation with other markets. 2. Statutory Basis 9 Nasdaq generally uses 10% threshold in these cases, in contrast to the sliding scale of percentages described in IM–11890–4, because multi-stock events adjudicated under Rule 11890(b) generally require coordination with other venues trading the stock in order to ensure consistent treatment of trades across all venues affected by the event. Nasdaq has found that the 10% threshold is VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,10 in general, and with Section 6(b)(5) of the Act,11 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to a free and open market and a national market system, and, in general, to protect investors and the public interest. The Interpretive Materials will promote market participants’ understanding of Nasdaq’s application of Nasdaq Rule 11890, thereby promoting greater certainty and accountability. PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 B. Self-Regulatory Organization’s Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in 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 Written comments were neither solicited nor received. generally used by other venues and therefore facilitates a coordinated and timely response. 10 15 U.S.C. 78f. 11 15 U.S.C. 78f(b)(5). E:\FR\FM\08DEN1.SGM 08DEN1 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Notices III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change is subject to Section 19(b)(3)(A)(iii) of the Act 12 and Rule 19b–4(f)(6) thereunder 13 because the proposal: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative prior to 30 days after the date of filing or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest; provided that the selfregulatory organization has given the Commission notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. Nasdaq provided the Commission with written notice of its intent to file this proposed rule change at least five business days prior to the date of filing the proposed rule change. Nasdaq has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the filing promotes market participants’ understanding of Nasdaq’s application of Nasdaq Rule 11890, thereby promoting greater certainty with regard to the administration of the rule. For these reasons, the Commission designates the proposal to be effective upon filing with the Commission.14 At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.15 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. 12 15 sroberts on PROD1PC70 with NOTICES VerDate Aug<31>2005 19:05 Dec 07, 2006 Jkt 211001 Comments may be submitted by any of the following methods: SECURITIES AND EXCHANGE COMMISSION Electronic Comments [Release No. 34–54857; File No. SR–NASD– 2006–101] • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASDAQ–2006–046 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549–1090. Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Provide for the Payment of a $200 Honorarium Per Case for Each Arbitrator Who Considers Contested Motions for the Issuance of Subpoenas December 1, 2006. 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 August All submissions should refer to File 23, 2006, the National Association of Number SR–NASDAQ–2006–046. This Securities Dealers, Inc. (‘‘NASD’’) filed with the Securities and Exchange file number should be included on the subject line if e-mail is used. To help the Commission (‘‘Commission’’) the proposed rule change as described in Commission process and review your Items I, II, and III below, which Items comments more efficiently, please use only one method. The Commission will have been prepared by NASD. On post all comments on the Commission’s November 13, 2006, NASD filed Amendment No. 1 to the proposed rule Internet Web site (http://www.sec.gov/ change.3 The Commission is publishing rules/sro.shtml). Copies of the this notice to solicit comments on the submission, all subsequent proposed rule change, as amended, from amendments, all written statements interested persons. with respect to the proposed rule change that are filed with the I. Self-Regulatory Organization’s Statement of the Terms of Substance of Commission, and all written the Proposed Rule Change communications relating to the proposed rule change between the NASD is proposing to provide for the Commission and any person, other than payment of a $200 honorarium per case those that may be withheld from the for each arbitrator who considers public in accordance with the contested motions for the issuance of provisions of 5 U.S.C. 552, will be subpoenas. Below is the text of the available for inspection and copying in proposed rule change.4 Proposed new the Commission’s Public Reference language is in italics. Room. Copies of such filing also will be * * * * * available for inspection and copying at IM–10104. Arbitrators’ Honorarium the principal office of the Nasdaq. All (a)–(e) No change comments received will be posted (f) Payment for Deciding Contested without change; the Commission does Subpoena Requests Without a Hearing not edit personal identifying Session information from submissions. You (1) The honorarium for deciding one should submit only information that you wish to make available publicly. All or more contested motions requesting the issuance of a subpoena without a submissions should refer to File hearing session shall be $200. The Number SR–NASDAQ–2006–046 and should be submitted on or before December 29, 2006. U.S.C. 78s(b)(3)(A)(iii). CFR 240.19b–4(f)(6). 14 For purposes only of waiving the operative delay for this proposal, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 15 See Section 19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C). 13 17 71213 For the Commission, by the Division of Market Regulation, pursuant to delegated authority.16 Florence E. Harmon, Deputy Secretary. [FR Doc. E6–20806 Filed 12–7–06; 8:45 am] BILLING CODE 8011–01–P 16 17 PO 00000 CFR 200.30–3(a)(12). Frm 00094 Fmt 4703 Sfmt 4703 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 In Amendment No. 1, NASD clarified provisions to the proposed rule change. 4 If the Commission approves the pending revisions to the NASD Code of Arbitration Procedure for Customer Disputes, the rules proposed in this filing will be renumbered as appropriate; see Securities Exchange Act Release No. 51856 (June 15, 2005) (SR–NASD–2003–158), 70 FR 36442 (June 23, 2005); and the NASD Code of Arbitration Procedure for Industry Disputes; see Securities Exchange Act Release No. 51857 (June 15, 2005) (SR–NASD–2004–011), 70 FR 36430 (June 23, 2005). 2 17 E:\FR\FM\08DEN1.SGM 08DEN1

Agencies

[Federal Register Volume 71, Number 236 (Friday, December 8, 2006)]
[Notices]
[Pages 71208-71213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-20806]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54854; File No. SR-NASDAQ-2006-046]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Regarding Guidance for Adjudicating Clearly Erroneous Transactions 
Under Rule 11890

December 1, 2006.
    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 7, 2006, The NASDAQ Stock Market LLC (``Nasdaq''), filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by Nasdaq. Nasdaq filed the proposal as a ``non-
controversial'' rule change pursuant to Section 19(b)(3)(A) of the 
Act,\3\ and Rule 19b-4(f)(6) thereunder,\4\ which renders the proposal 
effective upon filing with the Commission. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq is providing guidance regarding factors it generally 
considers in adjudicating clearly erroneous transactions under Nasdaq 
Rule 11890.
    The text of the proposed rule change is below. Proposed new 
language is in italics.
* * * * *

IM-11890-4. Clearly Erroneous Transaction Guidance for Filings under 
Rule 11890(a) and Single Stock Events under Rule 11890(b)

    Nasdaq is providing the following guidance on how it generally 
considers:
     All complaints filed by market participants under Rule 
11890(a); and
     Many events involving a single security considered on 
Nasdaq's own motion pursuant to Rule 11890(b).
    Nasdaq generally considers a transaction to be clearly erroneous 
when the print is substantially inconsistent with the market price at 
the time of execution. In making such a determination, Nasdaq takes 
into account the circumstances at the time of

[[Page 71209]]

the transaction, the maintenance of a fair and orderly market, and the 
protection of investors and the public interest. Participants in Nasdaq 
are responsible for ensuring that the appropriate price and type of 
order are entered into Nasdaq's systems. Simple assertion by a firm 
that it made a mistake in entering an order or a quote, or that it 
failed to pay attention or to update a quote, may not be sufficient to 
establish that a transaction was clearly erroneous.

Numerical factors for review

    Nasdaq primarily considers the execution price of a trade in 
determining whether it is clearly erroneous.

------------------------------------------------------------------------
            Execution price              Range away from reference price
------------------------------------------------------------------------
$1.75 and under........................  Equal to or greater than the
                                          minimum threshold required for
                                          adjudication under Rule
                                          11890(a)(2)(C)(ii).
Over $1.75 and up to $25...............  10%
Over $25 and up to $50.................  5%
Over $50...............................  3%
------------------------------------------------------------------------

    Nasdaq uses different Reference Prices based on the time of the 
trade and the listing venue of the security in order to establish an 
appropriate comparison point. These Reference Prices are detailed 
below. In unusual circumstances, however, Nasdaq may use a different 
Reference Price.

------------------------------------------------------------------------
    Time of trade and listing venue              Reference price
------------------------------------------------------------------------
Nasdaq-listed securities for trades      The best bid (best offer)
 executed between 9:30 am and 4 pm        (``BBO'') in Nasdaq at the
 Eastern Time (``Regular Session'').      time of execution of first
                                          share of the disputed order.
Non-Nasdaq-listed securities for trades  The national BBO at the time of
 executed during Regular Session and      execution of first share of
 after primary market has posted first    the disputed order.
 two-sided quote.
Non-Nasdaq-listed securities for trades  The national BBO at the time of
 executed during Regular Session and      execution of first share of
 before primary market has posted first   the disputed order. If
 two-sided quote.                         national BBO does not appear
                                          substantially related to
                                          market, Nasdaq may consider
                                          other Reference Prices
                                          including the opening trade,
                                          indication of interest and
                                          first two-sided quote in the
                                          primary market (which may
                                          occur after the execution) and
                                          the closing price for the
                                          prior Regular Session for the
                                          security's primary market.
Nasdaq-listed and non-Nasdaq-listed      Closing price of security for
 securities for trades executed after 4   the last Regular Session on
 pm and before 9:30 am Eastern Time.      the security's primary market.
------------------------------------------------------------------------

Additional Factors

    In occasional circumstances, Nasdaq may consider additional factors 
in determining whether a transaction is clearly erroneous. These 
include:
     Material news released for the security
     Suspicious trading activity
     System malfunctions or disruptions
     Locked or crossed markets
     Trading in the security was recently halted/resumed
     The security is an initial public offering
     Volume and volatility for the security
     Stock-split, reorganization or other corporate action.
     Validity of consolidated tape trades and quotes and Nasdaq 
BBO comparison to national BBO.
     General volatility of market conditions.
     Reason for the error.

Additional Information Concerning Rule 11890(b)

    Nasdaq may on its own motion review transactions in any security in 
the event of:
     A disruption or malfunction in the use or operation of any 
quotation, execution, communication, or trade reporting system owned or 
operated by Nasdaq and approved by the SEC;
     Extraordinary market conditions or other circumstances in 
which the nullification or modification of transactions may be 
necessary for the maintenance of a fair and orderly market or the 
protection of investors and the public interest.

Consequently, Rule 11890(b) is focused on systemic problems that 
involve large numbers of parties or trades, or market conditions where 
it would not be in the best interests of the market to proceed under 
the processes set forth in Rule 11890(a). Sometimes events involving a 
single security will meet the standards of Rule 11890(b). However, 
market participants should not assume that Rule 11890(b) will be 
available where, for example, they failed to file a complaint within 
the time periods specified in Rule 11890(a). The rule could be 
available, however, in cases where a trade not eligible for 
adjudication under Rule 11890(a) nevertheless could present systemic 
risks if permitted to stand.
    The guidance set forth in IM-11890-4 applies to many events 
involving a single security adjudicated pursuant to Rule 11890(b). 
However, Nasdaq may apply the guidance set forth in IM 11890-5 to some 
events involving a single security, such as some situations where 
trading activity occurs in multiple market centers and Nasdaq is acting 
in consultation with other markets.

IM-11890-5. Clearly Erroneous Transaction Guidance for Multi-Stock 
Events Under Rule 11890(b)

    Nasdaq is providing the following guidance on how it generally 
considers multi-stock events adjudicated on Nasdaq's own motion 
pursuant to Rule 11890(b).
    Nasdaq generally considers a transaction to be clearly erroneous 
when the print is substantially inconsistent with the market price at 
the time of execution. In making such a determination, Nasdaq takes 
into account the circumstances at the time of the transaction, the 
maintenance of a fair and orderly market, and the protection of 
investors and the public interest. Participants in Nasdaq are 
responsible for ensuring that the appropriate price and type of order 
are entered into Nasdaq's systems. Simple assertion by a firm that it 
made a mistake in entering an order or a quote,

[[Page 71210]]

or that it failed to pay attention or to update a quote, may not be 
sufficient to establish that a transaction was clearly erroneous.
    Nasdaq may on its own motion review transactions in any security in 
the event of:
     A disruption or malfunction in the use or operation of any 
quotation, execution, communication, or trade reporting system owned or 
operated by Nasdaq and approved by the SEC; or
     Extraordinary market conditions or other circumstances in 
which the nullification or modification of transactions may be 
necessary for the maintenance of a fair and orderly market or the 
protection of investors and the public interest.

Consequently, Rule 11890(b) is focused on systemic problems that 
involve large numbers of parties or trades, or market conditions where 
it would not be in the best interests of the market to proceed under 
the processes set forth in Rule 11890(a). Even in cases involving 
multiple securities, however, market participants should not assume 
that Rule 11890(b) will be available where, for example, they failed to 
file a complaint within the time periods specified in Rule 11890(a). 
The rule could be available, however, in cases where a trade not 
eligible for adjudication under Rule 11890(a) nevertheless could 
present systemic risks if permitted to stand. The determination of 
whether to adjudicate an event under Rule 11890(b) is made by Nasdaq in 
its sole discretion pursuant to the terms of the rule.

Numerical Factors for Review

    Nasdaq primarily considers the execution prices of the trades in 
question in determining whether trades should be nullified in a multi-
stock event pursuant to Rule 11890(b). Generally all trades more than 
10% away from the Reference Price would be clearly erroneous.
    NASDAQ uses different Reference Prices based on time of the trade 
in order to establish an appropriate comparison point. These Reference 
Prices are detailed below. In unusual circumstances, however, Nasdaq 
may use a different Reference Price.

------------------------------------------------------------------------
             Time of trade                       Reference price
------------------------------------------------------------------------
All trades executed after the opening    For Nasdaq-listed securities,
 of trading during regular market hours   the best bid (best offer)
 and until the end of regular market      (``BBO'') in Nasdaq at the
 hours.                                   time of execution of first
                                          share of the disputed order.
                                         For Non-Nasdaq-listed
                                          securities, the national BBO
                                          at the time of execution of
                                          first share of the disputed
                                          order.
All securities for trades executed:      The closing price of the
 after 4 p.m., Eastern Time       security for regular market
 (ET).                                    hours on the security's
 before 9:30 a.m., ET..........   primary market.
 during the market opening
 process for regular market hours.
------------------------------------------------------------------------


    In occasional circumstances, Nasdaq may consider additional factors 
in determining whether the transactions are clearly erroneous. These 
include:
     Material news released for individual securities
     Suspicious trading activity

Nasdaq may also apply the guidance set forth in IM 11890-5 to some 
events involving a single security, such as some situations where 
trading activity occurs in multiple market centers and Nasdaq is acting 
in consultation with other markets.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, Nasdaq 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. Nasdaq 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
    Nasdaq is adopting Interpretive Material under Nasdaq Rule 11890 to 
provide guidance with regard to its consideration of transactions that 
may be clearly erroneous. Paragraph (a) of Nasdaq Rule 11890 allows 
market participants to petition Nasdaq to nullify or modify trades that 
they allege to be clearly erroneous. Paragraph (b) allows Nasdaq to 
nullify or modify trades on its own motion in the event of a disruption 
or malfunction in the use or operation of Nasdaq systems or 
extraordinary market conditions or other circumstances in which the 
nullification or modification of transactions may be necessary for the 
maintenance of a fair and orderly market or the protection of investors 
and the public interest. Nasdaq is providing one set of Interpretive 
Material relating to Nasdaq Rule 11890(a) and many events involving a 
single stock under Rule 11890(b), and a second set of Interpretive 
Material relating to events involving multiple stocks under Nasdaq Rule 
11890(b). In each case, the Interpretive Material is intended to 
provide market participants with insights into the factors generally 
considered by Nasdaq in determining whether to nullify or modify trades 
under the rule.\5\
---------------------------------------------------------------------------

    \5\ The Interpretive Material includes language relating to 
trades in non-Nasdaq securities. Although Nasdaq is not yet 
operative as an exchange in these securities, Nasdaq is filing this 
language in anticipation of an operational date for these securities 
in the near future. Because Nasdaq's parent company, The Nasdaq 
Stock Market, Inc. (``Nasdaq Inc.''), currently trades non-Nasdaq 
securities pursuant to authority delegated by the National 
Association of Securities Dealers, Inc. (``NASD'') and administers 
NASD Rule 11890 with respect to these securities pursuant to that 
delegation, Nasdaq Inc. is also filing a version of the Interpretive 
Material as an NASD Rule. See SR-NASD-2006-123 (November 7, 2006).
---------------------------------------------------------------------------

    At its basic level, Nasdaq Rule 11890 is intended to allow Nasdaq 
to adjudicate disputes between firms as to the status of a trade, with 
a goal of preventing unjust enrichment of one market participant at the 
expense of another in circumstances where the terms of a trade are 
clearly out of line with objective market conditions for a security. 
Thus, Nasdaq Rule 11890(a) allows the party that believes it made a 
significant error to petition for an adjudication, and in appropriate 
circumstances, to be relieved of the obligation to settle the trade. 
The rule may not be used as an insurance policy against trades that 
merely lose money, however. Accordingly, the NASD's

[[Page 71211]]

predecessor rule was amended in 2005 \6\ to establish a conclusive 
presumption that a trade is not eligible for review under Nasdaq Rule 
11890(a) unless its price deviates from the inside market for the 
security by an amount in excess of certain bright-line numerical 
thresholds. This aspect of the rule reflects the view that it is 
preferable to promote market certainty and accountability by market 
participants by allowing all trades close to the inside market to 
stand, even if a particular trade may arguably have been caused by a 
market participant error.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 52141 (July 27, 
2005), 70 FR 44709 (August 3, 2005) (SR-NASD-2004-009).
---------------------------------------------------------------------------

    Nevertheless, in an environment of continual increases in the scope 
and speed of electronic trading, Nasdaq Rule 11890(b) provides an 
important safeguard against market disruptions caused by trader errors 
or system malfunctions that result in executions affecting multiple 
market participants and/or securities. Thus, Nasdaq Rule 11890(b) 
mitigates systemic risk by providing a mechanism to break erroneous 
trades that may have a serious detrimental effect on one or more market 
participants. Nasdaq Rule 11890(b) has been used both with respect to 
events affecting a single stock, as where an erroneous order causes a 
large number of trades involving multiple market participants to 
execute, and events affecting multiple stocks, as where a system 
malfunction results in a more widespread problem. Because of its focus 
on system malfunctions and overall market integrity, market 
participants should not assume that Nasdaq Rule 11890(b) will be used 
where, for example, they failed to file a complaint within the time 
periods specified in Nasdaq Rule 11890(a). However, the rule could be 
available in cases where a trade not eligible for adjudication under 
Nasdaq Rule 11890(a) nevertheless could present systemic risks if 
permitted to stand. Thus, for example, if a firm's erroneous trades had 
the potential to cause a firm's insolvency but its petition was 
untimely, Nasdaq might consider using Nasdaq Rule 11890(b)(ii) to 
prevent the insolvency.\7\
---------------------------------------------------------------------------

    \7\ As is the case in all instances where a firm's erroneous 
trades raise questions as to the adequacy of its internal controls, 
Nasdaq would also refer the firm for investigation by the NASD in 
its capacity as Nasdaq's regulatory services provider.
---------------------------------------------------------------------------

    Thus, under both parts of the rule, Nasdaq strives to strike a 
balance between certainty and flexibility, to ensure that (i) similar 
situations are addressed in a similar manner, (ii) market participants 
do not attempt to use the rule to attain unfair advantage, and (iii) 
the rule is not written or construed in a way that may prevent action 
necessary to protect market quality or prevent systemic problems and 
thereby maintain a fair and orderly market and protect investors and 
the public interest. With these considerations in mind, Nasdaq believes 
that the Interpretive Material allows market participants to achieve a 
better understanding of Nasdaq's application of the rule without 
limiting its adaptability. In effect, the Interpretive Material 
describes Nasdaq's understanding of the precedents that have emerged 
through years of adjudications under the rule; as with judicial 
precedents, they serve as a guide to future cases without constricting 
adaptability to new or unique fact patterns.
    Both sets of Interpretive Material reflect that Nasdaq generally 
considers a transaction to be clearly erroneous when the print is 
substantially inconsistent with the market price at the time of 
execution. In making such a determination, Nasdaq takes into account 
the circumstances at the time of the transaction, the maintenance of a 
fair and orderly market, and the protection of investors and the public 
interest. The Interpretive Material also stresses that participants in 
Nasdaq are responsible for ensuring that the appropriate price and type 
of order are entered into Nasdaq's systems. Simple assertion by a firm 
that it made a mistake in entering an order or a quote, or that it 
failed to pay attention or to update a quote, may not be sufficient to 
establish that a transaction was clearly erroneous.
    IM-11890-4 concerns all complaints filed by market participants 
under Nasdaq Rule 11890(a), as well as many events involving a single 
security considered on Nasdaq's own motion pursuant to Nasdaq Rule 
11890(b). Nasdaq primarily considers the execution price of a trade in 
determining whether it is clearly erroneous. Specifically, Nasdaq 
generally uses the following guidelines: \8\
---------------------------------------------------------------------------

    \8\ Nasdaq stated that at all execution prices, the guidelines 
are equal to or greater than the minimum threshold required for 
adjudication under Rule 11890(a)(2)(C)(ii). Telephone conversation 
by and between John Yetter, Senior Associate General Counsel, 
Nasdaq, and Terri Evans, Special Counsel and David Hsu, Special 
Counsel, Division of Market Regulation, Commission, on November 17, 
2006.

------------------------------------------------------------------------
            Execution price              Range away from reference price
------------------------------------------------------------------------
$1.75 and under........................  Equal to or greater than the
                                          minimum threshold required for
                                          adjudication under Rule
                                          11890(a)(2)(C)(ii).
Over $1.75 and up to $25...............  10 percent.
Over $25 and up to $50.................  5 percent.
Over $50...............................  3 percent.
------------------------------------------------------------------------

    Thus, the degree of deviation from a specified reference price 
needed for a trade to be declared clearly erroneous depends on the 
execution price: securities trading at lower prices require a higher 
percentage deviation before they will be considered clearly erroneous, 
since the normal daily trading ranges for these securities generally 
involve larger percentage movements. In the case of securities priced 
at $1.75 or below, a trade will generally be considered clearly 
erroneous if it is eligible for adjudication at all under the minimum 
thresholds under Nasdaq Rule 11890(a)(2)(C)(ii), since these thresholds 
require significant percentage deviation before a low-priced trade is 
eligible.
    Nasdaq uses different Reference Prices based on time of the trade 
and the listing venue of the security in order to establish an 
appropriate comparison point. These Reference Prices are detailed 
below. In unusual circumstances, however, Nasdaq may use a Reference 
Price not specifically described in the Interpretive Material. For 
example, in a case where material news about a security was released 
after market close for the security and a trade occurring after 4 p.m. 
and before 9:30 a.m. is at issue, it may be more appropriate to use a 
Reference Price derived from after-hours trading activity than to use 
the closing price of the security. Similarly, in the case of several 
large orders that execute at multiple prices, a Reference Price based 
on a weighted average of the BBO at relevant times may be more 
appropriate than a Reference Price based solely on the BBO

[[Page 71212]]

immediately prior to the execution of the first share of the order.

------------------------------------------------------------------------
    Time of trade and listing venue              Reference price
------------------------------------------------------------------------
Nasdaq-listed securities for trades      The best bid (best offer)
 executed between 9:30 a.m. and 4 p.m.    (``BBO'') in Nasdaq at the
 Eastern Time (``Regular Session'').      time of execution of first
                                          share of the disputed order.
Non-Nasdaq-listed securities for trades  The national BBO at the time of
 executed during Regular Session and      execution of first share of
 after primary market has posted first    the disputed order.
 two-sided quote.
Non-Nasdaq-listed securities for trades  The national BBO at the time of
 executed during Regular Session and      execution of first share of
 before primary market has posted first   the disputed order. If
 two-sided quote.                         national BBO does not appear
                                          substantially related to
                                          market, Nasdaq may consider
                                          other Reference Prices
                                          including the opening trade,
                                          indication of interest and
                                          first two-sided quote in the
                                          primary market (which may
                                          occur after the execution) and
                                          the closing price for the
                                          prior Regular Session for the
                                          security's primary market.
Nasdaq-listed and non-Nasdaq-listed      Closing price of security for
 securities for trades executed after 4   the last Regular Session on
 p.m. and before 9:30 a.m. Eastern Time.  the security's primary market.
------------------------------------------------------------------------

    In occasional circumstances, Nasdaq may consider additional factors 
in determining whether a transaction is clearly erroneous. These 
include:
     Material news released for the security.
     Suspicious trading activity.
     System malfunctions or disruptions.
     Locked or crossed markets.
     Trading in the security was recently halted/resumed.
     The security is an initial public offering.
     Volume and volatility for the security.
     Stock-split, reorganization or other corporate action.
     Validity of consolidated tape trades and quotes and Nasdaq 
BBO comparison to national BBO.
     General volatility of market conditions.
     Reason for the error.
    IM-11890-5 concerns multi-stock events adjudicated on Nasdaq's own 
motion pursuant to Nasdaq Rule 11890(b). In such cases, Nasdaq 
primarily considers the numerical factors of the execution prices in 
determining whether trades should be nullified. Generally all trades 
more than 10% away from the Reference Price would be clearly 
erroneous.\9\
---------------------------------------------------------------------------

    \9\ Nasdaq generally uses 10% threshold in these cases, in 
contrast to the sliding scale of percentages described in IM-11890-
4, because multi-stock events adjudicated under Rule 11890(b) 
generally require coordination with other venues trading the stock 
in order to ensure consistent treatment of trades across all venues 
affected by the event. Nasdaq has found that the 10% threshold is 
generally used by other venues and therefore facilitates a 
coordinated and timely response.
---------------------------------------------------------------------------

    Nasdaq uses different Reference Prices based on time of the trade 
in order to establish an appropriate comparison point. These Reference 
Prices are detailed below. In unusual circumstances, however, Nasdaq 
may use a different Reference Price.

------------------------------------------------------------------------
             Time of trade                       Reference price
------------------------------------------------------------------------
All trades executed after the opening    For Nasdaq-listed securities,
 of trading during regular market hours   the best bid (best offer)
 and until the end of regular market      (``BBO'') in Nasdaq at the
 hours.                                   time of execution of first
                                          share of the disputed order.
                                         For Non-Nasdaq-listed
                                          securities, the national BBO
                                          at the time of execution of
                                          first share of the disputed
                                          order.
All securities for trades executed:      The closing price of the
 after 4 p.m., Eastern Time       security for regular market
 (ET)                                     hours on the security's
 before 9:30 a.m., ET             primary market.
 during the market opening
 process for regular market hours
------------------------------------------------------------------------

    In occasional circumstances, Nasdaq may consider additional factors 
in determining whether the transactions in a multi-stock event are 
clearly erroneous, including material news released for individual 
securities or suspicious trading activity.
    The guidance set forth in IM-11890-4 will apply to many events 
involving a single security adjudicated pursuant to Nasdaq Rule 
11890(b). However, Nasdaq may apply the guidance set forth in IM-11890-
5 to some events involving a single security, such as some situations 
where trading activity occurs in multiple market centers and Nasdaq is 
acting in consultation with other markets.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\10\ in general, and with 
Section 6(b)(5) of the Act,\11\ in particular, in that it is designed 
to prevent fraudulent and manipulative acts and practices, to promote 
just and equitable principles of trade, to remove impediments to a free 
and open market and a national market system, and, in general, to 
protect investors and the public interest. The Interpretive Materials 
will promote market participants' understanding of Nasdaq's application 
of Nasdaq Rule 11890, thereby promoting greater certainty and 
accountability.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f.
    \11\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change will result 
in 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

    Written comments were neither solicited nor received.

[[Page 71213]]

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

    The foregoing proposed rule change is subject to Section 
19(b)(3)(A)(iii) of the Act \12\ and Rule 19b-4(f)(6) thereunder \13\ 
because the proposal: (i) Does not significantly affect the protection 
of investors or the public interest; (ii) does not impose any 
significant burden on competition; and (iii) does not become operative 
prior to 30 days after the date of filing or such shorter time as the 
Commission may designate if consistent with the protection of investors 
and the public interest; provided that the self-regulatory organization 
has given the Commission notice of its intent to file the proposed rule 
change, along with a brief description and text of the proposed rule 
change, at least five business days prior to the date of filing of the 
proposed rule change, or such shorter time as designated by the 
Commission.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \13\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    Nasdaq provided the Commission with written notice of its intent to 
file this proposed rule change at least five business days prior to the 
date of filing the proposed rule change. Nasdaq has requested that the 
Commission waive the 30-day operative delay. The Commission believes 
that waiving the 30-day operative delay is consistent with the 
protection of investors and the public interest because the filing 
promotes market participants' understanding of Nasdaq's application of 
Nasdaq Rule 11890, thereby promoting greater certainty with regard to 
the administration of the rule. For these reasons, the Commission 
designates the proposal to be effective upon filing with the 
Commission.\14\
---------------------------------------------------------------------------

    \14\ For purposes only of waiving the operative delay for this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.\15\
---------------------------------------------------------------------------

    \15\ See Section 19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C).
---------------------------------------------------------------------------

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 rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2006-046 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2006-046. 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 office of the Nasdaq. 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-NASDAQ-2006-046 and should be submitted on or before 
December 29, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E6-20806 Filed 12-7-06; 8:45 am]
BILLING CODE 8011-01-P