Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing and Order Granting Accelerated Approval to a Proposed Rule Change, as Amended, Relating to an NASD Trade Reporting Facility Established in Conjunction With the Boston Stock Exchange, 76409-76414 [E6-21660]
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
2. Statutory Basis
Nasdaq believes that the proposed
rule change is consistent with the
provisions of Section 15A of the Act,8 in
general, and with Section 15A(b)(5) of
the Act,9 in particular, in that it
provides for the equitable allocation of
reasonable dues, fees and other charges
among members and issuers and other
persons using any facility or system
which the NASD operates or controls.
Nasdaq states that the proposed rule
change extends for an additional month
a pilot that introduced a higher fee for
accessing Nasdaq Facility liquidity in
cases where a market participant’s use
of the Nasdaq Facilities does not meet
certain minimal thresholds. Nasdaq
believes that this change is consistent
with an equitable allocation of fees
because lower overall fees are charged
to market participants that enhance
market quality by providing liquidity.
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. In particular,
for the reasons discussed in SR–NASD–
2006–122, Nasdaq does not believe that
the proposed change to fees to access
liquidity in non-Nasdaq securities
through the Nasdaq Facilities will
impose a burden on competition by
other markets that route orders to the
Nasdaq Facilities for execution.
sroberts on PROD1PC70 with NOTICES
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.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change is subject to
Section 19(b)(3)(A)(ii) of the Act 10 and
subparagraph (f)(2) of Rule 19b–4
thereunder 11 because it establishes or
changes a due, fee, or other charge
applicable only to a member imposed by
the self-regulatory organization.
Accordingly, the proposal is effective
upon Commission receipt of the filing.
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
8 15
U.S.C. 78o–3.
9 15 U.S.C. 78o–3(b)(5).
10 15 U.S.C. 78s(b)(3)(A)(ii).
11 17 CFR 240.19b–4(f)(2).
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necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act.12
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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
No. SR–NASD–2006–130 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 No.
SR–NASD–2006–130. 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 (https://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 will also be
available for inspection and copying at
the principal office of the NASD. 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 No.
12 15 U.S.C. 78s(b)(3)(C). For purposes of
calculating the 60-day period within which the
Commission may summarily abrogate the proposal,
the Commission considers the period to commence
on December 6, 2006, the date on which the
Exchange submitted Amendment No. 1.
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76409
SR–NASD–2006–130 and should be
submitted on or before January 10, 2007.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.13
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E6–21650 Filed 12–19–06; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54931; File No. SR–NASD–
2006–115]
Self-Regulatory Organizations;
National Association of Securities
Dealers, Inc.; Notice of Filing and
Order Granting Accelerated Approval
to a Proposed Rule Change, as
Amended, Relating to an NASD Trade
Reporting Facility Established in
Conjunction With the Boston Stock
Exchange
December 13, 2006.
I. Introduction
On September 29, 2006, the National
Association of Securities Dealers, Inc.
(‘‘NASD’’) filed with the Securities and
Exchange Commission (‘‘Commission’’),
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a
proposal to establish an NASD trade
reporting facility (the ‘‘NASD/BSE
TRF’’) in conjunction with the Boston
Stock Exchange, Inc. (‘‘BSE’’). The
proposed rule change was published for
comment in the Federal Register on
October 18, 2006.3 The Commission
received one comment letter regarding
the proposal.4 The NASD filed
Amendment No. 1 to the proposed rule
change on December 5, 2006.5 This
13 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release No. 54591
(October 12, 2006), 71 FR 61519.
4 See letter from Alden Adkins, Executive Vice
President, BSE, to Robert Colby, Deputy Director,
Division of Market Regulation, Commission, dated
October 24, 2006 (‘‘BSE Letter’’).
5 In Amendment No. 1, the NASD revises the
proposal to: (1) Provide notice of final action taken
by the NASD with respect to the proposal; (2)
amend NASD Rule 4632D(a) to indicate that the
NASD/BSE TRF will support the .W and .PRP trade
report modifiers; (3) add NASD Rule 4632D(g)(2)(G)
to define the term ‘‘cancelled’’ for purposes of
determining the deadline for reporting a trade
cancellation; (4) add NASD Rule 4632D(i) and
6130D(g) to expressly prohibit the aggregating of
trades for purposes of trade reporting to the NASD/
BSE TRF; (5) add NASD Rule 6130D(f) to provide
trade report modifiers for certain transactions
reported to the NASD/BSE TRF in accordance with
Section 3 of Schedule A to the NASD By-Laws; and
1 15
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
order approves the proposal, as
amended, on an accelerated basis. In
addition, the Commission is publishing
notice to solicit comments on the
proposed rule change as amended by
Amendment No. 1.
II. Description of the Proposal
sroberts on PROD1PC70 with NOTICES
A. NASD/BSE TRF
The NASD proposes to establish a
new trade reporting facility, the NASD/
BSE TRF, that will provide NASD
members with an additional facility for
reporting transactions in NMS stocks, as
defined in Rule 600(b)(47) of Regulation
NMS under the Act,6 that are effected
otherwise than on an exchange. The
NASD/BSE TRF will be operated by the
NASD/BSE Trade Reporting Facility
LLC (‘‘NASD/BSE TRF LLC’’). The
NASD/BSE TRF structure and rules are
substantially similar to the trade
reporting facilities established by the
NASD and the Nasdaq Stock Market,
Inc. (the ‘‘NASD/Nasdaq TRF’’) and by
the NASD and the National Stock
Exchange, Inc. (the ‘‘NASD/NSX TRF’’),
which the Commission approved in
June 2006 7 and November 2006,8
respectively.
The NASD/BSE TRF will be a facility,
as defined under the Act,9 of the NASD,
subject to regulation by the NASD and
to the NASD’s registration as a national
securities association. NASD
members 10 that match and/or execute
(6) make various technical changes. In addition, in
Amendment No. 1 the NASD makes conforming
changes to the rules of the trade reporting facility
operated by the NASD and the National Stock
Exchange, Inc. (the ‘‘NASD/NSX TRF’’) by adding
NASD Rules 4632C(h) and 6130C(g) to expressly
prohibit the aggregating of trades for purposes of
trade reporting to the NASD/NSX TRF.
6 17 CFR 242.600(b)(47).
7 See Securities Exchange Act Release No. 54084
(June 30, 2006), 71 FR 38935 (July 10, 2006) (order
approving File No. SR–NASD–2005–087) (‘‘NASD/
Nasdaq TRF Approval Order’’). Although the
NASD/Nasdaq TRF originally accepted transaction
reports only for Nasdaq Global Market and Nasdaq
Capital Market securities and convertible bonds
listed on the Nasdaq Stock Market LLC (‘‘Nasdaq
Exchange’’), the Commission recently approved an
NASD proposal that, among other things, amended
the rules of the NASD/Nasdaq TRF to allow NASD
members to report transactions in NMS stocks to
the NASD/Nasdaq TRF. See Securities Exchange
Act Release No. 54798 (November 21, 2006), 71 FR
69156 (November 29, 2006) (order approving File
No. SR–NASD–2006–104) (‘‘NASD/Nasdaq TRF
November Order’’).
8 See Securities Exchange Act Release No. 54715
(November 6, 2006), 71 FR 66354 (November 14,
2006) (order approving File No. SR–NASD–2006–
115) (‘‘NASD/NSX TRF Approval Order’’).
9 15 U.S.C. 78c(a)(2).
10 Only NASD members in good standing may
participate in the NASD/BSE TRF. See NASD Rule
6120D(a)(1). NASD/BSE TRF participants also must
meet the minimum requirements set forth in NASD
Rule 6120D, including the execution of, and
continuing compliance with, a Participant
Application Agreement; membership in, or
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20:03 Dec 19, 2006
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orders internally or through proprietary
systems may submit reports of these
trades, with appropriate information
and modifiers, to the NASD/BSE TRF,
which will then report them to the
appropriate exclusive securities
information processor (‘‘SIP’’).11 NASD/
BSE TRF transaction reports
disseminated to the media will include
a modifier indicating the source of the
transactions that will distinguish them
from transactions executed on or
through the BSE. The NASD/BSE TRF
will provide the NASD with a real-time
copy of each trade report for regulatory
review purposes. At the option of the
participant, the NASD/BSE TRF may
provide the necessary clearing
information regarding transactions to
the National Securities Clearing
Corporation.
B. Limited Liability Company
Agreement of the NASD/BSE TRF LLC
The NASD and the BSE will jointly
own the NASD/BSE TRF LLC, which
will operate the NASD/BSE TRF. The
NASD has filed the Limited Liability
Company Agreement of the NASD/BSE
TRF LLC (the ‘‘LLC Agreement’’) as part
of the current proposal. The LLC
Agreement recognizes the NASD as
having sole regulatory responsibility for
the NASD/BSE TRF. The NASD, as the
‘‘SRO Member’’ under the LLC
Agreement, will perform the ‘‘SRO
Responsibilities’’ 12 for the NASD/BSE
TRF. The BSE, as the ‘‘Business
Member’’ under the LLC Agreement,
will be primarily responsible for the
management of the facility’s business
affairs to the extent those activities are
not inconsistent with the regulatory and
maintenance of, an effective clearing arrangement
with a participant of a registered clearing agency
registered pursuant to the Act; and the acceptance
and settlement of each trade that the NASD/BSE
TRF identifies as having been effected by the
participant. NASD Rule 6190D, ‘‘Termination of
Access,’’ allows the NASD to terminate access to
the NASD/BSE TRF if a participant fails to: (1)
abide by the rules or operating procedures of the
trade reporting service of the NASD/BSE TRF or the
NASD; (2) honor contractual agreements entered
into with the NASD or its subsidiaries or the
Participant Application Agreement; or (3) pay
promptly for services rendered to the trade
reporting service of the NASD/BSE TRF.
11 The NASD/BSE TRF will have controls in place
to ensure that transactions reported to the NASD/
BSE TRF that are significantly away from the
current market will not be submitted to the SIP. The
NASD represents that this is consistent with current
practice and notes that the Alternative Display
Facility (‘‘ADF’’) and the NASD/Nasdaq TRF
currently do not submit such trades to the SIP.
12 The LLC Agreement defines ‘‘SRO
Responsibilities’’ as those duties or responsibilities
of a self-regulatory organization (‘‘SRO’’) pursuant
to the Act and the rules promulgated thereunder,
including but not limited to those set out in section
9(a) of the LLC Agreement. See Schedule A of the
LLC Agreement.
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oversight functions of the NASD. The
BSE will pay the cost of regulation and
provide systems to enable NASD
members to report trades to the NASD/
BSE TRF. The BSE will be entitled to
the profits and losses, if any, derived
from the operation of the NASD/BSE
TRF.13 Under section 9(d) of the LLC
Agreement, each Member agrees to
comply with the federal securities laws
and the rules and regulations
thereunder and to cooperate with the
Commission pursuant to its regulatory
authority and the provisions of the LLC
Agreement.
The NASD/BSE TRF LLC will be
managed by, or under the direction of,
a Board of Directors to be established by
the NASD and the BSE. The NASD will
have the right to designate at least one
Director, the SRO Member Director, to
the NASD/BSE TRF LLC Board of
Directors. The SRO Director must
approve, by consent, all ‘‘Major
Actions,’’ as defined in section 10(e) of
the LLC Agreement. In addition, each
Director agrees to comply with the
federal securities laws and the rules and
regulations thereunder and to cooperate
with the Commission and the SRO
Member pursuant to their regulatory
authority.14 Further, when discharging
her or her duties as a member of the
Board of Directors, each Director must
take into consideration whether his or
her actions as a Director would cause
the NASD/BSE TRF or either Member to
engage in conduct that would be
inconsistent with the purposes of the
Act.15
The initial term of the LLC Agreement
is three years. During that time, until the
NASD/BSE TRF reaches ‘‘Substantial
Trade Volume’’ (defined as 250,000
trades or more per day for three
consecutive months), the BSE may
terminate the arrangement for
convenience. After the NASD/BSE TRF
reaches Substantial Trade Volume,
either Member may terminate the LLC
Agreement by providing to the other
Member prior written notice of at least
one year. In addition, the NASD may
terminate in the event its status or
reputation as an SRO is called into
jeopardy by the actions of the BSE or the
NASD/BSE TRF LLC. If the NASD/BSE
TRF LLC arrangement is terminated, the
NASD represents that it would be able
to fulfill all of its regulatory obligations
with respect to over-the-counter
(‘‘OTC’’) trade reporting through its
other facilities, including the NASD/
Nasdaq TRF, the ADF, and the ITS/
CAES System.
13 See
14 See
section 15 of the LLC Agreement.
section 10(b) of the LLC Agreement.
15 Id.
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
C. NASD/BSE TRF Rules
1. NASD Rule 4000D and 6000D Series
The NASD proposes to adopt the
NASD Rule 4000D Series, ‘‘The NASD/
BSE Trade Reporting Facility,’’ and
6000D Series, ‘‘NASD/BSE Trade
Reporting Facility Systems and
Programs,’’ to establish, respectively,
trade reporting and clearing and
comparison rules for the NASD/BSE
TRF.16 The NASD Rule 4000D and
6000D Series are substantially similar to
the NASD Rule 4000 and 6000 Series
governing the NASD/Nasdaq TRF and
the NASD Rule 4000C and 6000C Series
governing the NASD/NSX TRF.17
D. Amendment No. 1
sroberts on PROD1PC70 with NOTICES
Amendment No. 1 makes several
changes to the proposal. In the original
proposal, proposed NASD Rule
4632D(a)(7) indicated that stop stock
transactions, transactions at prices
based on average-weighting or other
special formulae, and certain
transactions that reflected a price
different from the current market could
not be reported to the NASD/BSE TRF
and had to be reported to the NASD via
an alternative electronic mechanism.
Amendment No. 1 revises NASD Rule
4362D(a) to indicate that the NASD/BSE
TRF will support these trades and thus
will support the .W and .PRP trade
report modifiers. Specifically, new
NASD Rules 4632D(a)(4) and (a)(9)
require NASD members to append the
.W trade report modifier to,
respectively, transaction reports
occurring at prices based on averageweighting or other special pricing
formulae and to reports of stop stock
transactions. New NASD Rule
4362D(a)(7) will require members to
append the .PRP trade report modifier to
transaction reports that reflect a price
different from the current market when
the execution price is based on a prior
reference point in time. New NASD
Rules 43632D(a)(4), (7), and (9) are
substantially the same as current NASD
Rules 4632(a)(4), (7), and (9), which
apply to the NASD/Nasdaq TRF.
In addition, Amendment No. 1 adds
NASD Rule 6130D(f), which requires the
16 The NASD notes that all other NASD rules that
apply to OTC trading generally will apply to trades
reported to the NASD/BSE TRF.
17 Some differences among the rules governing
the governing the trade reporting facilities result
from differences among the trade reporting systems
of the facilities. For example, because neither the
NASD/BSE TRF or the NASD/NSX TRF has a trade
comparison functionality, the rules governing the
NASD/BSE TRF and the NASD/NSX TRF contain
no provisions relating to trade matching, trade
acceptance, or aggregate volume matching. The
rules governing the NASD/Nasdaq TRF contain
such provisions.
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20:03 Dec 19, 2006
Jkt 211001
use of specified trade report modifiers
for the reporting of certain types of
transactions that are assessed a
regulatory transaction fee in accordance
with section 3 of Schedule A to the
NASD By-Laws. Specifically, NASD
Rule 6130D(f) provides trade report
modifiers for the reporting of odd-lot
transactions, away from the market
sales, and purchases or sales of
securities effected upon the exercise of
an over-the-counter option. These
transactions are not to be reported to the
NASD/BSE TRF for purposes of
publication.18 NASD Rule 6130D(f) is
substantially similar to NASD Rule
6130(g), which became effective on
December 1, 2006.19
Amendment No. 1 also adds NASD
Rules 4632D(i) and 6130D(g) to the rules
of the NASD/BSE TRF, and makes
conforming changes to the rules of the
NASD/NSX TRF.20 These rules add
express provisions prohibiting the
aggregation of trades for purposes of
trade reporting to the NASD/BSE TRF
and the NASD/NSX TRF. The NASD
notes that the original proposal
indicated that members would not be
permitted to aggregate individual
executions of orders in a security at the
same price into a single transaction
report submitted to the NASD/BSE TRF.
Similarly, the NASD notes that
aggregation is not permitted for
purposes of trade reporting to the
NASD/NSX TRF.21 For the sake of
clarity, and to maintain consistency
among the rules governing its trade
reporting facilities, the NASD has
determined to add an express
prohibition on aggregating trades to the
rules of both the NASD/BSE TRF and
the NASD/NSX TRF.
Finally, Amendment No. 1 contains
several technical changes. In this regard,
Amendment No. 1 adds NASD Rule
4632D(g)(2)(G) for purposes of
determining the deadline for reporting a
trade cancellation to the NASD/BSE
TRF. This paragraph is identical to
NASD Rule 4632(g)(2)(G) of the NASD/
Nasdaq TRF rules and was omitted
inadvertently from NASD Rule 4632D.
Amendment No. 1 also replaces an
incorrect reference in NASD Rule 6190D
to the ‘‘Applicant Participation
Agreement’’ with a reference to the
18 See
NASD Rule 4632D(f).
Securities Exchange Act Release No. 53977
(June 12, 2006), 71 FR 43976 (June 16, 2006) (order
approving File No. SR–NASD–2006–055). See also
Securities Exchange Act Release No. 54909
(December 11, 2006) (notice of filing and immediate
effectiveness of File No. SR–NASD–2006–129)
(proposing a substantially similar rule for the
NASD/NSX TRF) (‘‘December Notice’’).
20 See NASD Rules 4632C(h) and 6130C(g).
21 See NASD/NSX TRF Approval Order, supra
note 8.
19 See
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Fmt 4703
Sfmt 4703
76411
‘‘Participant Application Agreement;’’
replaces a reference in NASD Rule
4632D(d)(1) to ‘‘Registered ECNs’’ with
a reference to ‘‘Reporting ECNs,’’ which
is the defined term in NASD Rule
6110D; revises NASD Rule 6130D(d)(2)
to require trade reports to include the
number of shares or bonds; and revises
NASD Rule 4632D to clarify a reference
to a Non-Reporting Member or other
contra party, and to refer to a ‘‘Security
Identification Symbol’’ rather than a
‘‘stock symbol.’’
E. Implementation
In light of the systems changes
necessary for the NASD to implement
the NASD/BSE TRF for non-Nasdaq
exchange-listed securities, the NASD
proposes to implement the proposal in
two phases. Specifically, the NASD
proposes to implement the proposed
rule change with respect to Nasdaqlisted equity securities and convertible
debt on the first day of operation of the
NASD/BSE TRF, and to implement the
proposed rule change with respect to
non-Nasdaq exchange-listed securities
at a later date.
The NASD will announce the
implementation of the first phase of the
proposed rule change no later than 30
days following Commission approval of
the proposal, and the second phase no
later than 90 days following
Commission approval.
III. Summary of Comments
The Commission received one
comment letter regarding the
proposal.22 The commenter argued that
the NASD/NSX TRF would have an
unfair competitive advantage over the
NASD/BSE TRF if the NASD/NSX TRF
were approved prior to the NASD/BSE
TRF. Specifically, the commenter
believes that ‘‘the first regional
exchange operated TRF [will] capture
the lion’s share of members seeking an
alternative to the Nasdaq operated
TRF.’’23 Citing the Congressional
finding in section 11A(a)(1)(C)(ii) of the
Act 24 that ‘‘[i]t is in the public interest
and appropriate for the protection of
investors and the maintenance of fair
and orderly markets to assure * * * fair
competition among brokers and brokerdealers, among exchange markets, and
between exchange markets and markets
other than exchange markets * * *,’’
the commenter asked the Commission to
approve the current proposal and the
NASD/NSX TRF proposal
simultaneously. In support of this
argument, the commenter also noted the
22 See
BSE Letter, supra note 4.
BSE Letter, supra note 4.
24 15 U.S.C. 78k–1(a)(1)(C)(ii).
23 See
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
similarities between the NASD/NSX
TRF proposal and the current proposal.
IV. Discussion
The Commission finds that the
proposed rule change, as amended, is
consistent with the requirements of the
Act and the rules and regulations
thereunder applicable to a national
securities association.25 In particular,
the Commission finds that the proposed
rule change, as amended, is consistent
with section 15A(b)(6) of the Act 26 in
that it is designed to prevent fraudulent
and manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to and
facilitating transactions in securities, to
remove impediments to and perfect the
mechanism of a free and open market
and a national market system and, in
general, to protect investors and the
public interest.
The NASD/BSE TRF will provide
NASD members with an additional
mechanism for reporting transactions in
exchange-listed securities effected
otherwise than on an exchange. Rule
601 of Regulation NMS requires the
NASD to file a transaction reporting
plan regarding transactions in listed
equity and Nasdaq securities that are
executed by its members otherwise than
on a national securities exchange.27
Under rule 603 of Regulation NMS,28
national securities exchanges and
national securities associations act
jointly pursuant to an effective national
market system plan to disseminate
consolidated information, including a
national best bid and offer, and
quotations for and transactions in NMS
stocks. Today, the NASD operates the
ADF,29 NASD/Nasdaq TRF 30 and the
NASD/NSX TRF,31 and the ITS/CAES
System 32 for collecting transaction
reports. In addition, the NASD is a
participant in the Nasdaq UTP Plan 33
with regard to transaction reports in
Nasdaq-listed securities, and the CTA
Plan 34 with regard to securities listed
on exchanges other than Nasdaq.
Upon approval of the NASD/BSE
TRF, the NASD will operate another
facility for the purposes of accepting
transaction reports from its members.
The Commission has previously
recognized that the Act does not
prohibit the NASD from establishing
multiple facilities for fulfilling its
regulatory purposes.35 Indeed, as noted
above, the NASD currently operates
multiple facilities for fulfilling its
regulatory obligations. Therefore, the
Commission believes that it is
consistent with the Act for the NASD to
establish the NASD/BSE TRF for
purposes of fulfilling its regulatory
obligations. The NASD represented that
if the NASD/BSE TRF LLC arrangement
is terminated, the NASD will be able to
fulfill all of its regulatory obligations
with respect to OTC trade reporting
through its other facilities, including the
NASD/Nasdaq TRF and the ADF.
The NASD represented that it will
have an integrated audit trail of all trade
reporting facilities, ADF, and ITS/CAES
System transactions, and will have
integrated surveillance capabilities.
NASD has represented that it expects to
automate its integrated audit trail and
surveillance by the end of the fourth
quarter of 2006 for Nasdaq-listed
securities and by the end of the first
quarter of 2007 for non-Nasdaq
exchange-listed securities. The
Commission believes that an integrated
audit trail and integrated surveillance
capabilities are important to the NASD’s
ability to conduct effective surveillance
of OTC trading in exchange-listed
securities when transactions in those
securities can be reported to one of the
NASD’s trade reporting facilities, the
ADF, or the ITS/CAES System.
A commenter suggested that the
Commission approve the current
proposal simultaneously with the
NASD/NSX TRF.36 As noted above, the
Commission has approved the NASD’s
proposal to establish the NASD/NSX
TRF.37 The Commission stated in the
NASD/NSX TRF Approval Order that it
did not believe that it should delay the
operation of the NASD/NSX TRF until
other trade reporting facilities are ready
to operate.38 The Commission stated,
further, that it believed that approving
the NASD/NSX TRF and allowing it to
begin operations immediately could
enhance competition by providing a
new facility, in addition to those that
are operating currently, for reporting
OTC trades in exchange-listed
securities.39
A. NASD/BSE TRF Rules
Most of the provisions in the new
NASD Rule 4000D and 6000D Series,
which establish the trade reporting and
clearing and comparison rules for the
NASD/BSE TRF, are substantially
similar to the NASD Rule 4000 and 6000
Series and the NASD Rule 4000C and
6000C Series that the Commission
approved for the NASD/Nasdaq TRF 40
and the NASD/NSX TRF,41 respectively.
Other provisions in the rules of the
NASD/BSE TRF are substantially
similar to existing NASD rules.42 The
Commission finds that the provisions of
the NASD Rule 4000D and 6000D Series
that are substantially similar to existing
NASD rules are consistent with Act.
In Amendment No. 1, the NASD
proposes to adopt rules for the NASD/
NSX TRF and the NASD/BSE TRF that
expressly prohibit members from
aggregating trades for purposes of trade
36 See
sroberts on PROD1PC70 with NOTICES
37 See
25 In approving this proposed rule change, the
Commission has considered the proposal’s impact
on efficiency, competition, and capital formation.
See 15 U.S.C. 78c(f).
26 15 U.S.C. 78o–3(b)(6).
27 Under Rule 601(b) of Regulation NMS, brokerdealers are prohibited from executing a transaction
otherwise than on a national securities exchange
unless there is an effective transaction reporting
plan. NASD Rule 5000 requires NASD members to
report transactions in exchange-listed securities
effected otherwise than on an exchange to NASD.
28 17 CFR 242.603.
29 Currently, the ADF only accepts quotes and
trades in Nasdaq-listed securities. The Commission
recently approved a proposal to extend the ADF to
non-Nasdaq exchange-listed securities. See
Securities Exchange Act Release No. 54537
(September 28, 2006), 71 FR 59173 (October 6,
2006) (order approving File No. SR–NASD–2006–
091).
30 See NASD/Nasdaq TRF Approval Order and
NASD/Nasdaq TRF November Order, supra note 7.
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31 See NASD/NSX TRF Approval Order, supra
note 8.
32 The ITS/CAES System provides a means by
which NASD and its members can comply with the
terms of the Intermarket Trading System Plan (‘‘ITS
Plan’’). The ITS/CAES System reports trades in nonNasdaq exchange-listed securities that are effected
in the ITS/CAES System or in NASD members’
proprietary systems. The Commission recently
approved an NASD proposal to amend the ITS/
CAES System to reflect the operation of the Nasdaq
Exchange as a national securities exchange. See
NASD/Nasdaq TRF November Order, supra note 7.
33 Joint Self-Regulatory Organization Plan
Governing the Collection, Consolidation and
Dissemination of Quotation and Transaction
Information for Nasdaq-Listed Securities Traded on
Exchanges on an Unlisted Trading Privileges Basis
(‘‘Nasdaq UTP Plan’’).
34 Consolidated Tape Association Plan (‘‘CTA
Plan’’).
35 See NASD/Nasdaq TRF Approval Order, supra
note 7.
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Fmt 4703
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BSE Letter, supra note 4.
NASD/NSX TRF Approval Order, supra
note 8.
38 See NASD/NSX TRF Approval Order, supra
note 8.
39 See NASD/NSX TRF Approval Order, supra
note 8.
40 See NASD/Nasdaq TRF Approval Order, supra
note 7.
41 See NASD/NSX TRF Approval Order, supra
note 8.
42 For example, the two- and three-party trade
reporting rules in NASD Rules 4632D(c) and (d) are
substantially similar to the two- and three-party
trade reporting rules of the ADF. See NASD Rules
4632A(c) and (d). Similarly, the provisions of NASD
Rule 6130D(f), which provide trade report modifiers
for certain transactions that are assessed a
regulatory transaction fee in accordance with
Section 3 of Schedule A to the NASD By-Laws, are
substantially similar to NASD Rule 6130(g), which
governs the NASD/Nasdaq TRF. The NASD also
adopted substantially similar provisions for the
NASD/NSX TRF in NASD Rule 6130C(f). See
December Notice, supra note 19.
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
reporting to the NASD/NSX TRF and
the NASD/BSE TRF.43 The NASD notes
that both its initial NASD/BSE TRF
proposal and the NASD/NSX TRF
proposal 44 stated this prohibition,
which the NASD now proposes to
include in the rules of the NASD/NSX
TRF and the NASD/BSE TRF. The
Commission finds that these provisions
are consistent with the Act because they
will help to clarify the rules governing
the NASD/NSX TRF and the NASD/BSE
TRF.
In addition, Amendment No. 1 revises
NASD Rules 4632D(a)(4), (7), and (9) to
reflect that the NASD/BSE TRF will
support the .W and .PRP modifiers, and
adds NASD Rule NASD Rule
4632D(g)(2)(G), which is identical to
NASD Rule 4632(g)(2)(G), and was
inadvertently omitted. Amendment No.
1 also proposes to adopt NASD Rule
6130D(f), which provides trade report
modifiers for certain transactions and is
substantially similar to NASD Rules
6130(g) and 6130C(f).45 Because
proposed NASD Rule 6130D(f), and the
proposed changes to NASD Rule
4632D(a) and NASD Rule 4632D(g),
adopt rule provisions for the NASD/BSE
TRF that are identical or substantially
similar to existing NASD rules, the
Commission finds that these changes are
consistent with the Act. Similarly,
Commission finds that the technical
changes described in Section II.D.
above, which correct errors in the text
of the NASD/BSE TRF’s rules, are
consistent with the Act because they
will help to ensure the accuracy of the
NASD’s rules.
sroberts on PROD1PC70 with NOTICES
B. NASD/BSE TRF LLC
The NASD and the BSE will jointly
own the NASD/BSE TRF LLC, which
will operate the NASD/BSE TRF. The
NASD has filed the LLC Agreement as
part of the current proposal.46 The LLC
Agreement is substantially similar to the
limited liability company agreement of
the NASD/Nasdaq TRF LLC (‘‘NASD/
Nasdaq TRF LLC Agreement’’) that the
Commission approved in the NASD/
Nasdaq TRF Approval Order 47 and to
the limited liability company agreement
of the NASD/NSX TRF that the
Commission approved in the NASD/
43 See NASD Rules 4632C(h) and 6130C(g)
(governing the NASD/NSX TRF); and 4632D(i) and
6130D(g) (governing the NASD/BSE TRF).
44 See NASD/NSX TRF Approval Order, supra
note 8.
45 See note 42, supra.
46 The Commission notes that any changes to the
LLC Agreement that are stated policies, practices,
or interpretations of the NASD, as defined in Rule
19b–4 under the Act, must be filed with the
Commission pursuant to Section 19(b) of the Act
and Rule 19b–4 thereunder.
47 See note 7, supra.
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NSX TRF Approval Order.48
Accordingly, for the reasons discussed
in the NASD/Nasdaq TRF Approval
Order with respect to the NASD/Nasdaq
TRF LLC Agreement, the Commission
finds that the LLC Agreement is
consistent with the Act.49
The Commission notes that the
NASD/BSE TRF LLC, as the operator of
an NASD facility, is an integral part of
a SRO registered pursuant to the Act
and, as such, is subject to obligations
imposed by the Act. The Commission
underscores that these obligations
endure so long as the NASD/BSE TRF
LLC operates an NASD facility.
The Commission believes that the
LLC Agreement makes clear that the
NASD will have sole regulatory
responsibility for the activities of NASD
members related to the facility operated
by the NASD/BSE TRF LLC and
provides the NASD with certain rights
that are intended to preserve its
regulatory authority and control.50 The
Commission believes that the provisions
of the LLC Agreement will allow the
NASD to carry out its self-regulatory
responsibilities with respect to its
facility and that both the Commission
and the NASD will have sufficient
regulatory jurisdiction over the
controlling parties of the NASD/BSE
TRF LLC to carry out their
responsibilities under the Act.
For example, under the LLC
Agreement, each Member and each
director of the NASD/BSE TRF LLC
agrees to comply with the federal
securities laws and rules and
regulations thereunder and to cooperate
with the Commission pursuant to its
regulatory authority and the provisions
of the LLC Agreement. In addition, the
NASD and the BSE acknowledge in the
LLC Agreement that—to the extent
directly related to the NASD/BSE TRF
LLC’s activities—their books, records,
premises, officers, directors, governors,
agents, and employees will be deemed
to be the books, records, premises,
officers, directors, governors, agents,
and employees of the NASD itself and
its affiliates for the purposes of, and
subject to oversight pursuant to, the Act.
This provision will reinforce the
Commission’s ability to exercise its
authority under Section 19(h)(4) of the
48 See
note 8, supra.
Commission incorporates by reference the
discussion and analysis of the NASD/Nasdaq TRF
LLC and NASD/Nasdaq TRF LLC Agreement set
forth in the NASD/Nasdaq TRF Approval Order,
supra note 7.
50 For example, pursuant to the LLC Agreement,
the NASD must consent before certain ‘‘Major
Actions,’’ as defined in the LLC Agreement, with
respect to the NASD/BSE TRF LLC are effective.
49 The
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Sfmt 4703
76413
Act 51 with respect to the officers and
directors of the NASD/BSE TRF LLC
because all such officers and directorsto the extent that they are acting in
matters related to the NASD/BSE TRF
LLC’s activities-would be deemed to be
the officers and directors of the NASD
itself. Furthermore, under the LLC
Agreement, the records of the NASD
and BSE, to the extent that they are
related to the NASD/BSE TRF LLC’s
activities, are deemed to be records of
the NASD itself and are subject to the
Commission’s examination authority
under Section 17(b)(1) of the Act.52
The LLC Agreement also provides that
the NASD and the BSE, and each officer,
director, agent, and employee thereof,
irrevocably submits to the jurisdiction
of the U.S. federal courts, the
Commission, and the NASD for the
purpose of any suit, action, or
proceeding pursuant to the U.S. federal
securities laws and the rules and
regulations thereunder arising from, or
relating to, the NASD/BSE TRF LLC’s
activities.
The Commission also believes that the
requirements of Section 19(b) of the Act
and Rule 19b–4 thereunder provide the
Commission with sufficient authority
over changes in control of the NASD/
BSE TRF LLC to enable the Commission
to carry out its regulatory oversight
responsibilities with respect to the
NASD and its facilities.
The Commission notes that the NASD
is required to enforce compliance with
the provisions of the LLC Agreement
because they are ‘‘rules of the
association’’ within the meaning of
Section 3(a)(27) of the Act.53 A failure
on the part of the NASD to enforce its
rules could result in a suspension or
revocation of its registration pursuant to
Section 19(h)(1) of the Act.54
C. Accelerated Approval of the
Proposed Rule Change as Amended by
Amendment No. 1
The Commission finds good cause for
approving the proposed rule change as
amended by Amendment No. 1 prior to
the thirtieth day after the date of
publication of notice of filing thereof in
51 15 U.S.C. 78s(h)(4). Section 19(h)(4) of the Act
authorizes the Commission, by order, to remove
from office or censure any officer or director of an
SRO if it finds after notice and an opportunity for
hearing that such officer or director has: (1)
Willfully violated any provision of the Act or the
rules and regulations thereunder, or the rules of
such SRO; (2) willfully abused his or her authority;
or (3) without reasonable justification or excuse, has
failed to enforce compliance with any such
provision by a member or person associated with
a member of the SRO.
52 See Section 17(c) of the LLC Agreement.
53 15 U.S.C. 78c(a)(27).
54 15 U.S.C. 78s(h)(1).
E:\FR\FM\20DEN1.SGM
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Notices
the Federal Register. As described more
fully above, the changes to NASD Rules
4362D(a), 4632D(g), and 6130D(f) adopt
provisions for the NASD/BSE TRF that
are identical to or substantially the same
as existing NASD rules. The
Commission believes that these changes
do not raise new regulatory issues and
will help to provide consistency in the
NASD’s trade reporting rules.
Amendment No. 1 also revises the rules
of the NASD/NSX TRF and the NASD/
BSE TRF to include an express
prohibition on the aggregating of trades
for purposes of trade reporting to these
facilities. The Commission believes that
this change strengthens and clarifies the
rules governing the NASD/NSX TRF
and the NASD/BSE TRF by providing an
express prohibition on the aggregating
of trades for purposes of trade reporting
to the facilities. Finally, Amendment
No. 1 includes technical changes that
correct errors in the text of the NASD/
BSE TRF’s rules, thereby helping to
ensure the accuracy of the NASD’s
rules. For these reasons, the
Commission finds that it is consistent
with Sections 15A(b)(6) and 19(b) of the
Act to approve the proposed rule change
as amended by Amendment No. 1 on an
accelerated basis.
V. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the proposed rule
change as amended by Amendment No.
1, including whether it is consistent
with the Act. Comments may be
submitted by any of the following
methods:
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 the filing also will be
available for inspection and copying at
the principal office of the Exchange. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–NASD–2006–115 and
should be submitted on or before
January 10, 2007.
VI. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,55 that the
proposed rule change (SR–NASD–2006–
115), as amended, is approved.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.56
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E6–21660 Filed 12–19–06; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
sroberts on PROD1PC70 with NOTICES
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NASD–2006–115 on the
subject line.
[Release No. 34–54928; File No. SR–NSCC–
2006–05]
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–NASD–2006–115. 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 (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
December 13, 2006.
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20:03 Dec 19, 2006
Jkt 211001
Self-Regulatory Organizations;
National Securities Clearing
Corporation; Notice of Filing of a
Proposed Rule Change Relating to the
Wind-Down of a Member
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 notice is hereby given that on
March 28, 2006, National Securities
Clearing Corporation (‘‘NSCC’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) and on
September 28, 2006, amended the
proposed rule change as described in
Items I, II, and III below, which items
have been prepared primarily by NSCC.
The Commission is publishing this
notice to solicit comments on the
55 15
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
56 17
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Sfmt 4703
proposed rule change from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The proposed rule change would add
a new Rule 42, Wind-Down of a
Member, Fund Member, or Insurance
Carrier Member,2 to NSCC’s Rules to
address a situation where a member
notifies NSCC that it intends to wind
down its activities and NSCC
determines in its discretion that it must
take special action in order to protect
itself and its participants.3
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
NSCC 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. NSCC has prepared
summaries, set forth in sections (A), (B),
and (C) below, of the most significant
aspects of such statements.4
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
The proposed rule would allow NSCC
to determine that a member is a winddown member and would set forth the
conditions NSCC using its discretion
could place on a wind-down member
and the actions NSCC using its
discretion could take with respect to a
wind-down member to protect itself and
its members. Such actions would
include restricting or modifying the
wind-down member’s use of any or all
of NSCC’s services and requiring the
wind-down member to post increased
clearing fund deposits. NSCC would
retain all of its other rights set forth in
its rules and membership agreements,
including the right to declare the winddown member insolvent, if applicable,
and to cease to act for the member.
NSCC believes that the proposed rule
would ensure that it has the needed
flexibility to appropriately manage the
risks presented by an entity in crisis that
remains a member of NSCC. This is
2 The text of NSCC’s proposed Rule 42 can be
found on NSCC’s Web site at https://www.nscc.com.
3 Similar proposed rule changes have been filed
by The Depository Trust Company [File No. SR–
DTC–2006–07] and the Fixed Income Clearing
Corporation [File No. SR–FICC–2006–05].
4 The Commission has modified parts of these
statements.
E:\FR\FM\20DEN1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 244 (Wednesday, December 20, 2006)]
[Notices]
[Pages 76409-76414]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21660]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-54931; File No. SR-NASD-2006-115]
Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing and Order Granting Accelerated Approval
to a Proposed Rule Change, as Amended, Relating to an NASD Trade
Reporting Facility Established in Conjunction With the Boston Stock
Exchange
December 13, 2006.
I. Introduction
On September 29, 2006, the National Association of Securities
Dealers, Inc. (``NASD'') filed with the Securities and Exchange
Commission (``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposal to establish an NASD trade reporting facility
(the ``NASD/BSE TRF'') in conjunction with the Boston Stock Exchange,
Inc. (``BSE''). The proposed rule change was published for comment in
the Federal Register on October 18, 2006.\3\ The Commission received
one comment letter regarding the proposal.\4\ The NASD filed Amendment
No. 1 to the proposed rule change on December 5, 2006.\5\ This
[[Page 76410]]
order approves the proposal, as amended, on an accelerated basis. In
addition, the Commission is publishing notice to solicit comments on
the proposed rule change as amended by Amendment No. 1.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 54591 (October 12,
2006), 71 FR 61519.
\4\ See letter from Alden Adkins, Executive Vice President, BSE,
to Robert Colby, Deputy Director, Division of Market Regulation,
Commission, dated October 24, 2006 (``BSE Letter'').
\5\ In Amendment No. 1, the NASD revises the proposal to: (1)
Provide notice of final action taken by the NASD with respect to the
proposal; (2) amend NASD Rule 4632D(a) to indicate that the NASD/BSE
TRF will support the .W and .PRP trade report modifiers; (3) add
NASD Rule 4632D(g)(2)(G) to define the term ``cancelled'' for
purposes of determining the deadline for reporting a trade
cancellation; (4) add NASD Rule 4632D(i) and 6130D(g) to expressly
prohibit the aggregating of trades for purposes of trade reporting
to the NASD/BSE TRF; (5) add NASD Rule 6130D(f) to provide trade
report modifiers for certain transactions reported to the NASD/BSE
TRF in accordance with Section 3 of Schedule A to the NASD By-Laws;
and (6) make various technical changes. In addition, in Amendment
No. 1 the NASD makes conforming changes to the rules of the trade
reporting facility operated by the NASD and the National Stock
Exchange, Inc. (the ``NASD/NSX TRF'') by adding NASD Rules 4632C(h)
and 6130C(g) to expressly prohibit the aggregating of trades for
purposes of trade reporting to the NASD/NSX TRF.
---------------------------------------------------------------------------
II. Description of the Proposal
A. NASD/BSE TRF
The NASD proposes to establish a new trade reporting facility, the
NASD/BSE TRF, that will provide NASD members with an additional
facility for reporting transactions in NMS stocks, as defined in Rule
600(b)(47) of Regulation NMS under the Act,\6\ that are effected
otherwise than on an exchange. The NASD/BSE TRF will be operated by the
NASD/BSE Trade Reporting Facility LLC (``NASD/BSE TRF LLC''). The NASD/
BSE TRF structure and rules are substantially similar to the trade
reporting facilities established by the NASD and the Nasdaq Stock
Market, Inc. (the ``NASD/Nasdaq TRF'') and by the NASD and the National
Stock Exchange, Inc. (the ``NASD/NSX TRF''), which the Commission
approved in June 2006 \7\ and November 2006,\8\ respectively.
---------------------------------------------------------------------------
\6\ 17 CFR 242.600(b)(47).
\7\ See Securities Exchange Act Release No. 54084 (June 30,
2006), 71 FR 38935 (July 10, 2006) (order approving File No. SR-
NASD-2005-087) (``NASD/Nasdaq TRF Approval Order''). Although the
NASD/Nasdaq TRF originally accepted transaction reports only for
Nasdaq Global Market and Nasdaq Capital Market securities and
convertible bonds listed on the Nasdaq Stock Market LLC (``Nasdaq
Exchange''), the Commission recently approved an NASD proposal that,
among other things, amended the rules of the NASD/Nasdaq TRF to
allow NASD members to report transactions in NMS stocks to the NASD/
Nasdaq TRF. See Securities Exchange Act Release No. 54798 (November
21, 2006), 71 FR 69156 (November 29, 2006) (order approving File No.
SR-NASD-2006-104) (``NASD/Nasdaq TRF November Order'').
\8\ See Securities Exchange Act Release No. 54715 (November 6,
2006), 71 FR 66354 (November 14, 2006) (order approving File No. SR-
NASD-2006-115) (``NASD/NSX TRF Approval Order'').
---------------------------------------------------------------------------
The NASD/BSE TRF will be a facility, as defined under the Act,\9\
of the NASD, subject to regulation by the NASD and to the NASD's
registration as a national securities association. NASD members \10\
that match and/or execute orders internally or through proprietary
systems may submit reports of these trades, with appropriate
information and modifiers, to the NASD/BSE TRF, which will then report
them to the appropriate exclusive securities information processor
(``SIP'').\11\ NASD/BSE TRF transaction reports disseminated to the
media will include a modifier indicating the source of the transactions
that will distinguish them from transactions executed on or through the
BSE. The NASD/BSE TRF will provide the NASD with a real-time copy of
each trade report for regulatory review purposes. At the option of the
participant, the NASD/BSE TRF may provide the necessary clearing
information regarding transactions to the National Securities Clearing
Corporation.
---------------------------------------------------------------------------
\9\ 15 U.S.C. 78c(a)(2).
\10\ Only NASD members in good standing may participate in the
NASD/BSE TRF. See NASD Rule 6120D(a)(1). NASD/BSE TRF participants
also must meet the minimum requirements set forth in NASD Rule
6120D, including the execution of, and continuing compliance with, a
Participant Application Agreement; membership in, or maintenance of,
an effective clearing arrangement with a participant of a registered
clearing agency registered pursuant to the Act; and the acceptance
and settlement of each trade that the NASD/BSE TRF identifies as
having been effected by the participant. NASD Rule 6190D,
``Termination of Access,'' allows the NASD to terminate access to
the NASD/BSE TRF if a participant fails to: (1) abide by the rules
or operating procedures of the trade reporting service of the NASD/
BSE TRF or the NASD; (2) honor contractual agreements entered into
with the NASD or its subsidiaries or the Participant Application
Agreement; or (3) pay promptly for services rendered to the trade
reporting service of the NASD/BSE TRF.
\11\ The NASD/BSE TRF will have controls in place to ensure that
transactions reported to the NASD/BSE TRF that are significantly
away from the current market will not be submitted to the SIP. The
NASD represents that this is consistent with current practice and
notes that the Alternative Display Facility (``ADF'') and the NASD/
Nasdaq TRF currently do not submit such trades to the SIP.
---------------------------------------------------------------------------
B. Limited Liability Company Agreement of the NASD/BSE TRF LLC
The NASD and the BSE will jointly own the NASD/BSE TRF LLC, which
will operate the NASD/BSE TRF. The NASD has filed the Limited Liability
Company Agreement of the NASD/BSE TRF LLC (the ``LLC Agreement'') as
part of the current proposal. The LLC Agreement recognizes the NASD as
having sole regulatory responsibility for the NASD/BSE TRF. The NASD,
as the ``SRO Member'' under the LLC Agreement, will perform the ``SRO
Responsibilities'' \12\ for the NASD/BSE TRF. The BSE, as the
``Business Member'' under the LLC Agreement, will be primarily
responsible for the management of the facility's business affairs to
the extent those activities are not inconsistent with the regulatory
and oversight functions of the NASD. The BSE will pay the cost of
regulation and provide systems to enable NASD members to report trades
to the NASD/BSE TRF. The BSE will be entitled to the profits and
losses, if any, derived from the operation of the NASD/BSE TRF.\13\
Under section 9(d) of the LLC Agreement, each Member agrees to comply
with the federal securities laws and the rules and regulations
thereunder and to cooperate with the Commission pursuant to its
regulatory authority and the provisions of the LLC Agreement.
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\12\ The LLC Agreement defines ``SRO Responsibilities'' as those
duties or responsibilities of a self-regulatory organization
(``SRO'') pursuant to the Act and the rules promulgated thereunder,
including but not limited to those set out in section 9(a) of the
LLC Agreement. See Schedule A of the LLC Agreement.
\13\ See section 15 of the LLC Agreement.
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The NASD/BSE TRF LLC will be managed by, or under the direction of,
a Board of Directors to be established by the NASD and the BSE. The
NASD will have the right to designate at least one Director, the SRO
Member Director, to the NASD/BSE TRF LLC Board of Directors. The SRO
Director must approve, by consent, all ``Major Actions,'' as defined in
section 10(e) of the LLC Agreement. In addition, each Director agrees
to comply with the federal securities laws and the rules and
regulations thereunder and to cooperate with the Commission and the SRO
Member pursuant to their regulatory authority.\14\ Further, when
discharging her or her duties as a member of the Board of Directors,
each Director must take into consideration whether his or her actions
as a Director would cause the NASD/BSE TRF or either Member to engage
in conduct that would be inconsistent with the purposes of the Act.\15\
---------------------------------------------------------------------------
\14\ See section 10(b) of the LLC Agreement.
\15\ Id.
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The initial term of the LLC Agreement is three years. During that
time, until the NASD/BSE TRF reaches ``Substantial Trade Volume''
(defined as 250,000 trades or more per day for three consecutive
months), the BSE may terminate the arrangement for convenience. After
the NASD/BSE TRF reaches Substantial Trade Volume, either Member may
terminate the LLC Agreement by providing to the other Member prior
written notice of at least one year. In addition, the NASD may
terminate in the event its status or reputation as an SRO is called
into jeopardy by the actions of the BSE or the NASD/BSE TRF LLC. If the
NASD/BSE TRF LLC arrangement is terminated, the NASD represents that it
would be able to fulfill all of its regulatory obligations with respect
to over-the-counter (``OTC'') trade reporting through its other
facilities, including the NASD/Nasdaq TRF, the ADF, and the ITS/CAES
System.
[[Page 76411]]
C. NASD/BSE TRF Rules
1. NASD Rule 4000D and 6000D Series
The NASD proposes to adopt the NASD Rule 4000D Series, ``The NASD/
BSE Trade Reporting Facility,'' and 6000D Series, ``NASD/BSE Trade
Reporting Facility Systems and Programs,'' to establish, respectively,
trade reporting and clearing and comparison rules for the NASD/BSE
TRF.\16\ The NASD Rule 4000D and 6000D Series are substantially similar
to the NASD Rule 4000 and 6000 Series governing the NASD/Nasdaq TRF and
the NASD Rule 4000C and 6000C Series governing the NASD/NSX TRF.\17\
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\16\ The NASD notes that all other NASD rules that apply to OTC
trading generally will apply to trades reported to the NASD/BSE TRF.
\17\ Some differences among the rules governing the governing
the trade reporting facilities result from differences among the
trade reporting systems of the facilities. For example, because
neither the NASD/BSE TRF or the NASD/NSX TRF has a trade comparison
functionality, the rules governing the NASD/BSE TRF and the NASD/NSX
TRF contain no provisions relating to trade matching, trade
acceptance, or aggregate volume matching. The rules governing the
NASD/Nasdaq TRF contain such provisions.
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D. Amendment No. 1
Amendment No. 1 makes several changes to the proposal. In the
original proposal, proposed NASD Rule 4632D(a)(7) indicated that stop
stock transactions, transactions at prices based on average-weighting
or other special formulae, and certain transactions that reflected a
price different from the current market could not be reported to the
NASD/BSE TRF and had to be reported to the NASD via an alternative
electronic mechanism. Amendment No. 1 revises NASD Rule 4362D(a) to
indicate that the NASD/BSE TRF will support these trades and thus will
support the .W and .PRP trade report modifiers. Specifically, new NASD
Rules 4632D(a)(4) and (a)(9) require NASD members to append the .W
trade report modifier to, respectively, transaction reports occurring
at prices based on average-weighting or other special pricing formulae
and to reports of stop stock transactions. New NASD Rule 4362D(a)(7)
will require members to append the .PRP trade report modifier to
transaction reports that reflect a price different from the current
market when the execution price is based on a prior reference point in
time. New NASD Rules 43632D(a)(4), (7), and (9) are substantially the
same as current NASD Rules 4632(a)(4), (7), and (9), which apply to the
NASD/Nasdaq TRF.
In addition, Amendment No. 1 adds NASD Rule 6130D(f), which
requires the use of specified trade report modifiers for the reporting
of certain types of transactions that are assessed a regulatory
transaction fee in accordance with section 3 of Schedule A to the NASD
By-Laws. Specifically, NASD Rule 6130D(f) provides trade report
modifiers for the reporting of odd-lot transactions, away from the
market sales, and purchases or sales of securities effected upon the
exercise of an over-the-counter option. These transactions are not to
be reported to the NASD/BSE TRF for purposes of publication.\18\ NASD
Rule 6130D(f) is substantially similar to NASD Rule 6130(g), which
became effective on December 1, 2006.\19\
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\18\ See NASD Rule 4632D(f).
\19\ See Securities Exchange Act Release No. 53977 (June 12,
2006), 71 FR 43976 (June 16, 2006) (order approving File No. SR-
NASD-2006-055). See also Securities Exchange Act Release No. 54909
(December 11, 2006) (notice of filing and immediate effectiveness of
File No. SR-NASD-2006-129) (proposing a substantially similar rule
for the NASD/NSX TRF) (``December Notice'').
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Amendment No. 1 also adds NASD Rules 4632D(i) and 6130D(g) to the
rules of the NASD/BSE TRF, and makes conforming changes to the rules of
the NASD/NSX TRF.\20\ These rules add express provisions prohibiting
the aggregation of trades for purposes of trade reporting to the NASD/
BSE TRF and the NASD/NSX TRF. The NASD notes that the original proposal
indicated that members would not be permitted to aggregate individual
executions of orders in a security at the same price into a single
transaction report submitted to the NASD/BSE TRF. Similarly, the NASD
notes that aggregation is not permitted for purposes of trade reporting
to the NASD/NSX TRF.\21\ For the sake of clarity, and to maintain
consistency among the rules governing its trade reporting facilities,
the NASD has determined to add an express prohibition on aggregating
trades to the rules of both the NASD/BSE TRF and the NASD/NSX TRF.
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\20\ See NASD Rules 4632C(h) and 6130C(g).
\21\ See NASD/NSX TRF Approval Order, supra note 8.
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Finally, Amendment No. 1 contains several technical changes. In
this regard, Amendment No. 1 adds NASD Rule 4632D(g)(2)(G) for purposes
of determining the deadline for reporting a trade cancellation to the
NASD/BSE TRF. This paragraph is identical to NASD Rule 4632(g)(2)(G) of
the NASD/Nasdaq TRF rules and was omitted inadvertently from NASD Rule
4632D. Amendment No. 1 also replaces an incorrect reference in NASD
Rule 6190D to the ``Applicant Participation Agreement'' with a
reference to the ``Participant Application Agreement;'' replaces a
reference in NASD Rule 4632D(d)(1) to ``Registered ECNs'' with a
reference to ``Reporting ECNs,'' which is the defined term in NASD Rule
6110D; revises NASD Rule 6130D(d)(2) to require trade reports to
include the number of shares or bonds; and revises NASD Rule 4632D to
clarify a reference to a Non-Reporting Member or other contra party,
and to refer to a ``Security Identification Symbol'' rather than a
``stock symbol.''
E. Implementation
In light of the systems changes necessary for the NASD to implement
the NASD/BSE TRF for non-Nasdaq exchange-listed securities, the NASD
proposes to implement the proposal in two phases. Specifically, the
NASD proposes to implement the proposed rule change with respect to
Nasdaq-listed equity securities and convertible debt on the first day
of operation of the NASD/BSE TRF, and to implement the proposed rule
change with respect to non-Nasdaq exchange-listed securities at a later
date.
The NASD will announce the implementation of the first phase of the
proposed rule change no later than 30 days following Commission
approval of the proposal, and the second phase no later than 90 days
following Commission approval.
III. Summary of Comments
The Commission received one comment letter regarding the
proposal.\22\ The commenter argued that the NASD/NSX TRF would have an
unfair competitive advantage over the NASD/BSE TRF if the NASD/NSX TRF
were approved prior to the NASD/BSE TRF. Specifically, the commenter
believes that ``the first regional exchange operated TRF [will] capture
the lion's share of members seeking an alternative to the Nasdaq
operated TRF.''\23\ Citing the Congressional finding in section
11A(a)(1)(C)(ii) of the Act \24\ that ``[i]t is in the public interest
and appropriate for the protection of investors and the maintenance of
fair and orderly markets to assure * * * fair competition among brokers
and broker-dealers, among exchange markets, and between exchange
markets and markets other than exchange markets * * *,'' the commenter
asked the Commission to approve the current proposal and the NASD/NSX
TRF proposal simultaneously. In support of this argument, the commenter
also noted the
[[Page 76412]]
similarities between the NASD/NSX TRF proposal and the current
proposal.
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\22\ See BSE Letter, supra note 4.
\23\ See BSE Letter, supra note 4.
\24\ 15 U.S.C. 78k-1(a)(1)(C)(ii).
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IV. Discussion
The Commission finds that the proposed rule change, as amended, is
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
association.\25\ In particular, the Commission finds that the proposed
rule change, as amended, is consistent with section 15A(b)(6) of the
Act \26\ in that it is designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to
and facilitating transactions in securities, to remove impediments to
and perfect the mechanism of a free and open market and a national
market system and, in general, to protect investors and the public
interest.
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\25\ In approving this proposed rule change, the Commission has
considered the proposal's impact on efficiency, competition, and
capital formation. See 15 U.S.C. 78c(f).
\26\ 15 U.S.C. 78o-3(b)(6).
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The NASD/BSE TRF will provide NASD members with an additional
mechanism for reporting transactions in exchange-listed securities
effected otherwise than on an exchange. Rule 601 of Regulation NMS
requires the NASD to file a transaction reporting plan regarding
transactions in listed equity and Nasdaq securities that are executed
by its members otherwise than on a national securities exchange.\27\
Under rule 603 of Regulation NMS,\28\ national securities exchanges and
national securities associations act jointly pursuant to an effective
national market system plan to disseminate consolidated information,
including a national best bid and offer, and quotations for and
transactions in NMS stocks. Today, the NASD operates the ADF,\29\ NASD/
Nasdaq TRF \30\ and the NASD/NSX TRF,\31\ and the ITS/CAES System \32\
for collecting transaction reports. In addition, the NASD is a
participant in the Nasdaq UTP Plan \33\ with regard to transaction
reports in Nasdaq-listed securities, and the CTA Plan \34\ with regard
to securities listed on exchanges other than Nasdaq.
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\27\ Under Rule 601(b) of Regulation NMS, broker-dealers are
prohibited from executing a transaction otherwise than on a national
securities exchange unless there is an effective transaction
reporting plan. NASD Rule 5000 requires NASD members to report
transactions in exchange-listed securities effected otherwise than
on an exchange to NASD.
\28\ 17 CFR 242.603.
\29\ Currently, the ADF only accepts quotes and trades in
Nasdaq-listed securities. The Commission recently approved a
proposal to extend the ADF to non-Nasdaq exchange-listed securities.
See Securities Exchange Act Release No. 54537 (September 28, 2006),
71 FR 59173 (October 6, 2006) (order approving File No. SR-NASD-
2006-091).
\30\ See NASD/Nasdaq TRF Approval Order and NASD/Nasdaq TRF
November Order, supra note 7.
\31\ See NASD/NSX TRF Approval Order, supra note 8.
\32\ The ITS/CAES System provides a means by which NASD and its
members can comply with the terms of the Intermarket Trading System
Plan (``ITS Plan''). The ITS/CAES System reports trades in non-
Nasdaq exchange-listed securities that are effected in the ITS/CAES
System or in NASD members' proprietary systems. The Commission
recently approved an NASD proposal to amend the ITS/CAES System to
reflect the operation of the Nasdaq Exchange as a national
securities exchange. See NASD/Nasdaq TRF November Order, supra note
7.
\33\ Joint Self-Regulatory Organization Plan Governing the
Collection, Consolidation and Dissemination of Quotation and
Transaction Information for Nasdaq-Listed Securities Traded on
Exchanges on an Unlisted Trading Privileges Basis (``Nasdaq UTP
Plan'').
\34\ Consolidated Tape Association Plan (``CTA Plan'').
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Upon approval of the NASD/BSE TRF, the NASD will operate another
facility for the purposes of accepting transaction reports from its
members. The Commission has previously recognized that the Act does not
prohibit the NASD from establishing multiple facilities for fulfilling
its regulatory purposes.\35\ Indeed, as noted above, the NASD currently
operates multiple facilities for fulfilling its regulatory obligations.
Therefore, the Commission believes that it is consistent with the Act
for the NASD to establish the NASD/BSE TRF for purposes of fulfilling
its regulatory obligations. The NASD represented that if the NASD/BSE
TRF LLC arrangement is terminated, the NASD will be able to fulfill all
of its regulatory obligations with respect to OTC trade reporting
through its other facilities, including the NASD/Nasdaq TRF and the
ADF.
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\35\ See NASD/Nasdaq TRF Approval Order, supra note 7.
---------------------------------------------------------------------------
The NASD represented that it will have an integrated audit trail of
all trade reporting facilities, ADF, and ITS/CAES System transactions,
and will have integrated surveillance capabilities. NASD has
represented that it expects to automate its integrated audit trail and
surveillance by the end of the fourth quarter of 2006 for Nasdaq-listed
securities and by the end of the first quarter of 2007 for non-Nasdaq
exchange-listed securities. The Commission believes that an integrated
audit trail and integrated surveillance capabilities are important to
the NASD's ability to conduct effective surveillance of OTC trading in
exchange-listed securities when transactions in those securities can be
reported to one of the NASD's trade reporting facilities, the ADF, or
the ITS/CAES System.
A commenter suggested that the Commission approve the current
proposal simultaneously with the NASD/NSX TRF.\36\ As noted above, the
Commission has approved the NASD's proposal to establish the NASD/NSX
TRF.\37\ The Commission stated in the NASD/NSX TRF Approval Order that
it did not believe that it should delay the operation of the NASD/NSX
TRF until other trade reporting facilities are ready to operate.\38\
The Commission stated, further, that it believed that approving the
NASD/NSX TRF and allowing it to begin operations immediately could
enhance competition by providing a new facility, in addition to those
that are operating currently, for reporting OTC trades in exchange-
listed securities.\39\
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\36\ See BSE Letter, supra note 4.
\37\ See NASD/NSX TRF Approval Order, supra note 8.
\38\ See NASD/NSX TRF Approval Order, supra note 8.
\39\ See NASD/NSX TRF Approval Order, supra note 8.
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A. NASD/BSE TRF Rules
Most of the provisions in the new NASD Rule 4000D and 6000D Series,
which establish the trade reporting and clearing and comparison rules
for the NASD/BSE TRF, are substantially similar to the NASD Rule 4000
and 6000 Series and the NASD Rule 4000C and 6000C Series that the
Commission approved for the NASD/Nasdaq TRF \40\ and the NASD/NSX
TRF,\41\ respectively. Other provisions in the rules of the NASD/BSE
TRF are substantially similar to existing NASD rules.\42\ The
Commission finds that the provisions of the NASD Rule 4000D and 6000D
Series that are substantially similar to existing NASD rules are
consistent with Act.
---------------------------------------------------------------------------
\40\ See NASD/Nasdaq TRF Approval Order, supra note 7.
\41\ See NASD/NSX TRF Approval Order, supra note 8.
\42\ For example, the two- and three-party trade reporting rules
in NASD Rules 4632D(c) and (d) are substantially similar to the two-
and three-party trade reporting rules of the ADF. See NASD Rules
4632A(c) and (d). Similarly, the provisions of NASD Rule 6130D(f),
which provide trade report modifiers for certain transactions that
are assessed a regulatory transaction fee in accordance with Section
3 of Schedule A to the NASD By-Laws, are substantially similar to
NASD Rule 6130(g), which governs the NASD/Nasdaq TRF. The NASD also
adopted substantially similar provisions for the NASD/NSX TRF in
NASD Rule 6130C(f). See December Notice, supra note 19.
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In Amendment No. 1, the NASD proposes to adopt rules for the NASD/
NSX TRF and the NASD/BSE TRF that expressly prohibit members from
aggregating trades for purposes of trade
[[Page 76413]]
reporting to the NASD/NSX TRF and the NASD/BSE TRF.\43\ The NASD notes
that both its initial NASD/BSE TRF proposal and the NASD/NSX TRF
proposal \44\ stated this prohibition, which the NASD now proposes to
include in the rules of the NASD/NSX TRF and the NASD/BSE TRF. The
Commission finds that these provisions are consistent with the Act
because they will help to clarify the rules governing the NASD/NSX TRF
and the NASD/BSE TRF.
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\43\ See NASD Rules 4632C(h) and 6130C(g) (governing the NASD/
NSX TRF); and 4632D(i) and 6130D(g) (governing the NASD/BSE TRF).
\44\ See NASD/NSX TRF Approval Order, supra note 8.
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In addition, Amendment No. 1 revises NASD Rules 4632D(a)(4), (7),
and (9) to reflect that the NASD/BSE TRF will support the .W and .PRP
modifiers, and adds NASD Rule NASD Rule 4632D(g)(2)(G), which is
identical to NASD Rule 4632(g)(2)(G), and was inadvertently omitted.
Amendment No. 1 also proposes to adopt NASD Rule 6130D(f), which
provides trade report modifiers for certain transactions and is
substantially similar to NASD Rules 6130(g) and 6130C(f).\45\ Because
proposed NASD Rule 6130D(f), and the proposed changes to NASD Rule
4632D(a) and NASD Rule 4632D(g), adopt rule provisions for the NASD/BSE
TRF that are identical or substantially similar to existing NASD rules,
the Commission finds that these changes are consistent with the Act.
Similarly, Commission finds that the technical changes described in
Section II.D. above, which correct errors in the text of the NASD/BSE
TRF's rules, are consistent with the Act because they will help to
ensure the accuracy of the NASD's rules.
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\45\ See note 42, supra.
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B. NASD/BSE TRF LLC
The NASD and the BSE will jointly own the NASD/BSE TRF LLC, which
will operate the NASD/BSE TRF. The NASD has filed the LLC Agreement as
part of the current proposal.\46\ The LLC Agreement is substantially
similar to the limited liability company agreement of the NASD/Nasdaq
TRF LLC (``NASD/Nasdaq TRF LLC Agreement'') that the Commission
approved in the NASD/Nasdaq TRF Approval Order \47\ and to the limited
liability company agreement of the NASD/NSX TRF that the Commission
approved in the NASD/NSX TRF Approval Order.\48\ Accordingly, for the
reasons discussed in the NASD/Nasdaq TRF Approval Order with respect to
the NASD/Nasdaq TRF LLC Agreement, the Commission finds that the LLC
Agreement is consistent with the Act.\49\
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\46\ The Commission notes that any changes to the LLC Agreement
that are stated policies, practices, or interpretations of the NASD,
as defined in Rule 19b-4 under the Act, must be filed with the
Commission pursuant to Section 19(b) of the Act and Rule 19b-4
thereunder.
\47\ See note 7, supra.
\48\ See note 8, supra.
\49\ The Commission incorporates by reference the discussion and
analysis of the NASD/Nasdaq TRF LLC and NASD/Nasdaq TRF LLC
Agreement set forth in the NASD/Nasdaq TRF Approval Order, supra
note 7.
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The Commission notes that the NASD/BSE TRF LLC, as the operator of
an NASD facility, is an integral part of a SRO registered pursuant to
the Act and, as such, is subject to obligations imposed by the Act. The
Commission underscores that these obligations endure so long as the
NASD/BSE TRF LLC operates an NASD facility.
The Commission believes that the LLC Agreement makes clear that the
NASD will have sole regulatory responsibility for the activities of
NASD members related to the facility operated by the NASD/BSE TRF LLC
and provides the NASD with certain rights that are intended to preserve
its regulatory authority and control.\50\ The Commission believes that
the provisions of the LLC Agreement will allow the NASD to carry out
its self-regulatory responsibilities with respect to its facility and
that both the Commission and the NASD will have sufficient regulatory
jurisdiction over the controlling parties of the NASD/BSE TRF LLC to
carry out their responsibilities under the Act.
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\50\ For example, pursuant to the LLC Agreement, the NASD must
consent before certain ``Major Actions,'' as defined in the LLC
Agreement, with respect to the NASD/BSE TRF LLC are effective.
---------------------------------------------------------------------------
For example, under the LLC Agreement, each Member and each director
of the NASD/BSE TRF LLC agrees to comply with the federal securities
laws and rules and regulations thereunder and to cooperate with the
Commission pursuant to its regulatory authority and the provisions of
the LLC Agreement. In addition, the NASD and the BSE acknowledge in the
LLC Agreement that--to the extent directly related to the NASD/BSE TRF
LLC's activities--their books, records, premises, officers, directors,
governors, agents, and employees will be deemed to be the books,
records, premises, officers, directors, governors, agents, and
employees of the NASD itself and its affiliates for the purposes of,
and subject to oversight pursuant to, the Act. This provision will
reinforce the Commission's ability to exercise its authority under
Section 19(h)(4) of the Act \51\ with respect to the officers and
directors of the NASD/BSE TRF LLC because all such officers and
directors-to the extent that they are acting in matters related to the
NASD/BSE TRF LLC's activities-would be deemed to be the officers and
directors of the NASD itself. Furthermore, under the LLC Agreement, the
records of the NASD and BSE, to the extent that they are related to the
NASD/BSE TRF LLC's activities, are deemed to be records of the NASD
itself and are subject to the Commission's examination authority under
Section 17(b)(1) of the Act.\52\
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\51\ 15 U.S.C. 78s(h)(4). Section 19(h)(4) of the Act authorizes
the Commission, by order, to remove from office or censure any
officer or director of an SRO if it finds after notice and an
opportunity for hearing that such officer or director has: (1)
Willfully violated any provision of the Act or the rules and
regulations thereunder, or the rules of such SRO; (2) willfully
abused his or her authority; or (3) without reasonable justification
or excuse, has failed to enforce compliance with any such provision
by a member or person associated with a member of the SRO.
\52\ See Section 17(c) of the LLC Agreement.
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The LLC Agreement also provides that the NASD and the BSE, and each
officer, director, agent, and employee thereof, irrevocably submits to
the jurisdiction of the U.S. federal courts, the Commission, and the
NASD for the purpose of any suit, action, or proceeding pursuant to the
U.S. federal securities laws and the rules and regulations thereunder
arising from, or relating to, the NASD/BSE TRF LLC's activities.
The Commission also believes that the requirements of Section 19(b)
of the Act and Rule 19b-4 thereunder provide the Commission with
sufficient authority over changes in control of the NASD/BSE TRF LLC to
enable the Commission to carry out its regulatory oversight
responsibilities with respect to the NASD and its facilities.
The Commission notes that the NASD is required to enforce
compliance with the provisions of the LLC Agreement because they are
``rules of the association'' within the meaning of Section 3(a)(27) of
the Act.\53\ A failure on the part of the NASD to enforce its rules
could result in a suspension or revocation of its registration pursuant
to Section 19(h)(1) of the Act.\54\
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\53\ 15 U.S.C. 78c(a)(27).
\54\ 15 U.S.C. 78s(h)(1).
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C. Accelerated Approval of the Proposed Rule Change as Amended by
Amendment No. 1
The Commission finds good cause for approving the proposed rule
change as amended by Amendment No. 1 prior to the thirtieth day after
the date of publication of notice of filing thereof in
[[Page 76414]]
the Federal Register. As described more fully above, the changes to
NASD Rules 4362D(a), 4632D(g), and 6130D(f) adopt provisions for the
NASD/BSE TRF that are identical to or substantially the same as
existing NASD rules. The Commission believes that these changes do not
raise new regulatory issues and will help to provide consistency in the
NASD's trade reporting rules. Amendment No. 1 also revises the rules of
the NASD/NSX TRF and the NASD/BSE TRF to include an express prohibition
on the aggregating of trades for purposes of trade reporting to these
facilities. The Commission believes that this change strengthens and
clarifies the rules governing the NASD/NSX TRF and the NASD/BSE TRF by
providing an express prohibition on the aggregating of trades for
purposes of trade reporting to the facilities. Finally, Amendment No. 1
includes technical changes that correct errors in the text of the NASD/
BSE TRF's rules, thereby helping to ensure the accuracy of the NASD's
rules. For these reasons, the Commission finds that it is consistent
with Sections 15A(b)(6) and 19(b) of the Act to approve the proposed
rule change as amended by Amendment No. 1 on an accelerated basis.
V. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule change as amended by Amendment
No. 1, including whether it is consistent with the Act. Comments may be
submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASD-2006-115 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-NASD-2006-115. 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 (https://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 the filing
also will be available for inspection and copying at the principal
office of the Exchange. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to File Number
SR-NASD-2006-115 and should be submitted on or before January 10, 2007.
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\55\ that the proposed rule change (SR-NASD-2006-115), as amended,
is approved.
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\55\ 15 U.S.C. 78s(b)(2).
\56\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\56\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E6-21660 Filed 12-19-06; 8:45 am]
BILLING CODE 8011-01-P
