Order Pursuant to Section 11A of the Securities Exchange Act of 1934 and Rule 608(e) Thereunder Extending a de minimis Exemption for Transactions in Certain Exchange-Traded Funds From the Trade-Through Provisions of the Intermarket Trading System, 4545-4547 [E7-1475]
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Federal Register / Vol. 72, No. 20 / Wednesday, January 31, 2007 / Notices
SECURITIES AND EXCHANGE
COMMISSION
Submission for OMB Review;
Comment Request
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of Filings and
Information Services, Washington, DC
20549.
mstockstill on PROD1PC62 with NOTICES
Extension: Rule 12b–1; SEC File No. 270–
188; OMB Control No. 3235–0212.
Notice is hereby given that pursuant
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) the Securities
and Exchange Commission
(‘‘Commission’’) has submitted to the
Office of Management and Budget
(‘‘OMB’’) a request for extension of the
previously approved collection of
information discussed below.
Rule 12b–1 (17 CFR 270.12b–1)
permits a registered open-end
investment company (‘‘mutual fund’’) to
distribute its own shares and pay the
expenses of distribution out of the
mutual fund’s assets provided, among
other things, that the mutual fund
adopts a written plan (‘‘Rule 12b–1
plan’’) and has in writing any
agreements relating to the
implementation of the Rule 12b–1 plan.
The rule in part requires that (i) the
adoption or material amendment of a
Rule 12b–1 plan be approved by the
mutual fund’s directors and
shareholders; (ii) the board review
quarterly reports of amounts spent
under the Rule 12b–1 plan; and (iii) the
board consider continuation of the Rule
12b–1 plan at least annually. Rule 12b–
1 also requires funds relying on the rule
to preserve for six years, the first two
years in an easily accessible place,
copies of the Rule 12b–1 plan, related
agreements and reports, as well as
minutes of board meetings that describe
the factors considered and the basis for
adopting or continuing a Rule 12b–1
plan.
The board and shareholder approval
requirements of Rule 12b–1 are
designed to ensure that fund
shareholders and directors receive
adequate information to evaluate and
approve a Rule 12b–1 plan. The
requirement of quarterly reporting to the
board is designed to ensure that the
Rule 12b–1 plan continues to benefit the
fund and its shareholders. The
recordkeeping requirements of the rule
are necessary to enable Commission
staff to oversee compliance with the
rule.
The number of hours required to
comply with Rule 12b–1 will vary
considerably depending on several
factors, including the complexity of the
VerDate Aug<31>2005
15:08 Jan 30, 2007
Jkt 211001
plan and the number of classes of fund
shares covered by the plan, and is
expected to be higher in the first year
following adoption of the proposed
amendments than in subsequent years.
Based on information filed with the
Commission by funds, Commission staff
estimates that there are approximately
6,536 mutual fund portfolios with Rule
12b–1 plans.
Rule 12b–1 requires the board of each
fund with a Rule 12b–1 plan to (i)
review quarterly reports of amounts
spent under the plan, and (ii) annually
consider the plan’s continuation (which
generally is combined with the fourth
quarterly review); (iii) have each fund
document the policies and procedures it
has implemented to enable it to effect
portfolio securities transactions through
an executing broker that also distributes
the fund’s shares, and (iv) approve those
policies and procedures.
The number of annual responses per
fund portfolio will be four per year.
Thus, there will be an estimated 26,144
industry responses (6,536 fund
portfolios × 4 responses per fund
portfolio = 26,144 responses) in the first
year and in each subsequent year. Thus,
we estimate that there will be an average
of 26,144 industry responses per year
over the three year period for which we
are requesting approval of the
information collection burden.
Based on conversations with fund
industry representatives, Commission
staff estimates that for each of the 6,536
mutual fund portfolios that currently
have a Rule 12b–1 plan, the average
annual burden of complying with the
rule is 100 hours to maintain the plan.
This estimate takes into account the
time needed to prepare quarterly reports
to the board of directors, the board’s
consideration of those reports, and the
board’s annual consideration of the
plan’s continuation. The total burden
hours per year for all fund portfolios to
comply with current information
collection requirements under Rule
12b–1, is therefore estimated to be
653,600 hours (6,536 fund portfolios ×
100 hours per fund portfolio = 653,600
hours). The annual cost of the hourly
burden per fund under the rule is
estimated to be $11,135.00. Thus, we
estimate that the total annual cost to all
funds of the Rule 12b–1 hour burden is
$72,778,360.00 (6,536 fund portfolios
with Rule 12b–1 plans × $11,135.00 per
fund portfolio = $72,778,360.00).
If a currently operating fund seeks to
(i) adopt a new Rule 12b–1 plan or (ii)
materially increase the amount it spends
for distribution under its Rule 12b–1
plan, Rule 12b–1 requires that the fund
obtain shareholder approval. As a
consequence, the fund will incur the
PO 00000
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Fmt 4703
Sfmt 4703
4545
cost of a proxy. Based on conversations
with fund industry representatives,
Commission staff estimates that
approximately three funds per year
prepare a proxy in connection with the
adoption or material amendment of a
Rule 12b–1 plan. The staff further
estimates that the cost of each fund’s
proxy is $30,000. Thus the total annual
cost burden of Rule 12b–1 to the fund
industry is $90,000 (3 funds requiring a
proxy × $30,000 per proxy).
The collections of information
required by Rule 12b–1 are necessary to
obtain the benefits of the rule. Notices
to the Commission will not be kept
confidential. An agency may not
conduct or sponsor, and a person is not
required to respond to a collection of
information unless it displays a
currently valid control number.
General comments regarding the
above information should be directed to
the following persons: (i) Desk Officer
for the Securities and Exchange
Commission, Office of Information and
Regulatory Affairs, Office of
Management and Budget, Room 10102,
New Executive Office Building,
Washington, DC 20503 or e-mail to:
David_Rostker@omb.eop.gov; and (ii) R.
Corey Booth, Director/Chief Information
Officer, Securities and Exchange
Commission, C/O Shirley Martinson,
6432 General Green Way, Alexandria,
VA 22312, or send an e-mail to:
PRA_Mailbox@sec.gov. Comments must
be submitted to OMB within 30 days of
this notice.
Dated: January 22, 2007.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7–1520 Filed 1–30–07; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–55165]
Order Pursuant to Section 11A of the
Securities Exchange Act of 1934 and
Rule 608(e) Thereunder Extending a de
minimis Exemption for Transactions in
Certain Exchange-Traded Funds From
the Trade-Through Provisions of the
Intermarket Trading System
January 25, 2007.
This order extends, through March 4,
2007, a de minimis exemption to the
provisions of the Intermarket Trading
System Plan (‘‘ITS Plan’’),1 a national
1 The self-regulatory organizations (‘‘SROs’’)
participating in the ITS Plan include the American
Stock Exchange LLC, the Boston Stock Exchange,
Inc., the Chicago Board Options Exchange, Inc., the
E:\FR\FM\31JAN1.SGM
Continued
31JAN1
4546
Federal Register / Vol. 72, No. 20 / Wednesday, January 31, 2007 / Notices
mstockstill on PROD1PC62 with NOTICES
market system plan,2 governing
intermarket trade-throughs that
currently is due to expire on February
4, 2007. The de minimis exemption was
originally issued by the Commission on
August 28, 2002 3 and extended on May
30, 2003,4 on March 3, 2004,5 on
December 3, 2004,6 on September 6,
2005,7 and on June 28, 2006.8
Specifically, this order continues the
de minimis exemption from compliance
with Section 8(d)(i) of the ITS Plan with
respect to two specific exchange-traded
funds (‘‘ETFs’’), the Dow Jones
Industrial Average ETF (‘‘DIA’’) and the
Standard & Poor’s 500 Index ETF
(‘‘SPY’’).9 By its terms, the June 2006
Chicago Stock Exchange, Inc., the National Stock
Exchange, Inc. (formerly the Cincinnati Stock
Exchange, Inc.), the National Association of
Securities Dealers, Inc. (‘‘NASD’’), the New York
Stock Exchange LLC, NYSE Arca, Inc. (formerly the
Pacific Exchange, Inc.), and the Philadelphia Stock
Exchange, Inc. (collectively, the ‘‘participants’’). See
Securities Exchange Act Release No. 19456 (January
27, 1983), 48 FR 4938 (February 3, 1983).
2 Securities Exchange Act of 1934 (‘‘Act’’) Rule
608(c) (formerly Rule 11Aa3–2(d)), 17 CFR
242.608(c), promulgated under Section 11A, 15
U.S.C. 78k–1, of the Act requires each SRO to
comply with, and enforce compliance by its
members and their associated persons with, the
terms of any effective national market system plan
of which it is a sponsor or participant. Rule 608(e)
(formerly Rule 11Aa3–2(f)), 17 CFR 242.608(e),
under the Act authorizes the Commission to
exempt, either unconditionally or on specified
terms and conditions, any SRO, member of an SRO,
or specified security from the requirement of the
rule if the Commission determines that such
exemption is consistent with the public interest, the
protection of investors, the maintenance of fair and
orderly markets and the removal of impediments to,
and perfection of the mechanisms of, a national
market system.
3 See Securities Exchange Act Release No. 46428
(August 28, 2002), 67 FR 56607 (September 4, 2002)
(the ‘‘August 2002 Order’’). The August 2002 Order
granted relief through June 4, 2003.
4 See Securities Exchange Act Release No. 47950
(May 30, 2003), 68 FR 33748 (June 5, 2003) (the
‘‘May 2003 Order’’). The May 2003 Order granted
relief through March 4, 2004.
5 See Securities Exchange Act Release No. 49356
(March 3, 2004), 69 FR 11057 (March 9, 2004) (the
‘‘March 2004 Order’’). The March 2004 Order
granted relief through December 4, 2004.
6 See Securities Exchange Act Release No. 50795
(December 3, 2004), 69 FR 71445 (December 9,
2004) (the ‘‘December 2004 Order’’). The December
2004 Order granted relief through September 4,
2005.
7 See Securities Exchange Act Release No. 52382
(September 6, 2005), 70 FR 53695 (September 9,
2005) (the ‘‘September 2005 Order’’). The
September 2005 Order granted relief through June
28, 2006.
8 See Securities Exchange Act Release No. 54063
(June 28, 2006), 71 FR 38433 (July 6, 2006) (the
‘‘June 2006 Order’’). The June 2006 Order granted
relief through February 4, 2007.
9 The Commission limited the de minimis
exemption to these two securities because they
share certain characteristics that may make
immediate execution of their shares highly
desirable to certain investors. In particular, trading
in the two ETFs is highly liquid and market
participants may value an immediate execution at
a displayed price more than the opportunity to
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15:08 Jan 30, 2007
Jkt 211001
Order continued the exemption from the
trade-through provisions of the ITS Plan
of any transactions in the two ETFs that
are effected at prices at or within three
cents away from the best bid and offer
quoted in the Consolidated Quote
System (‘‘CQS’’) through February 4,
2007.
In the Commission’s previous orders
to issue and extend the de minimis
exemption,10 the Commission discussed
its basis for determining that the de
minimis exemption is consistent with
the public interest, the protection of
investors, the maintenance of fair and
orderly markets and the removal of
impediments to, and perfection of the
mechanisms of, a national market
system. In the June 2006 Order, the
Commission further noted that:
In March 2004 and in May 2003, the
Commission extended the three cent de
minimis exemption for additional ninemonth periods, in order to assess trading data
associated with the de minimis exemption
and to consider whether to adopt the de
minimis exemption on a permanent basis, to
adopt some other alternative solution, or to
allow the exemption to expire. As a result of
its review of trading data associated with the
de minimis exemption, the Commission has
proposed, as part of its market structure
initiatives, Regulation NMS under the Act,
which would include a new rule relating to
trade-throughs.
On April 6, 2005, the Commission
approved Regulation NMS under the
Act.11 In Regulation NMS, the
Commission adopted an approach that,
among other things, protects only
automated quotations and excludes
manual quotations from trade-through
protection, and renders the de minimis
exemption unnecessary. Given the
significant systems and other changes
necessary to implement Rule 610 and
Rule 611,12 the Commission originally
obtain a slightly better price. Unlike prior orders,
the December 2004, September 2005, and June 2006
extensions of the de minimis exemption applied
only to the DIA and the SPY, and not the QQQ,
because, on December 1, 2004, trading of the QQQ
transferred from the American Stock Exchange to
Nasdaq, and thus trades in the QQQ ceased to be
subject to the trade-through provisions of the ITS
Plan. Accordingly, an exemption for the QQQ was
no longer necessary. See December 2004 Order,
September 2005 Order, and June 2006 Order.
10 See supra notes 3 to 8.
11 See Securities Exchange Act Release No. 51808
(June 9, 2005), 70 FR 37496 (June 29, 2005).
12 Rule 610 generally prohibits national securities
exchanges and national securities associations from
imposing unfairly discriminatory terms that prevent
or inhibit access to quotations, and establishes a
limit on access fees, and requires each national
securities exchange and national securities
association to adopt, maintain, and enforce written
rules that prohibit their members from engaging in
a pattern or practice of displaying quotations that
lock or cross protected quotations. Rule 611
requires trading centers to establish, maintain, and
enforce written policies and procedures reasonably
PO 00000
Frm 00070
Fmt 4703
Sfmt 4703
established delayed compliance dates
for Rule 610 and Rule 611, the first of
which was scheduled to begin on June
29, 2006.13 In the September 2005
Order, the Commission stated that until
Regulation NMS is implemented, the
reasons for maintaining the de minimis
exemption in effect continue to be valid,
and thus the Commission extended the
de minimis exemption though June 28,
2006, which was the date before the
initial compliance date for Rule 610 and
Rule 611.
On May 18, 2006, the Commission
extended the compliance dates for Rule
610 and Rule 611 to give trading centers
additional time to finalize the
development of their new or modified
trading systems, and to give the
securities industry sufficient time to
establish the necessary access to such
trading systems.14 The initial
compliance date was extended to a
series of five dates, beginning on
October 16, 2006, for different
functional stages of compliance, with
February 5, 2007 (the ‘‘Trading Phase
Date’’) being the final date for full
operation of Regulation NMS-compliant
trading systems for initial trade-through
protection under Rule 611, as described
in the First NMS Extension Release. The
Commission also extended the de
minimis exemption through February 4,
2007, which was the day before the
Trading Phase Date.15
On January 24, 2007, the Commission
extended the Trading Phase Date to
March 5, 2007.16 Therefore, to maintain
the status quo and avoid requiring
market participants to make short-term
trading or programming changes
pending the extended implementation
period for Rule 610 and Rule 611 of
Regulation NMS, it is appropriate to
extend the de minimis exemption
through March 4, 2007, the day before
designed to prevent the execution of trades at prices
inferior to protected quotations displayed by other
trading centers, subject to an applicable exception.
13 See supra note 11.
14 Securities Exchange Act Release No. 53829
(May 18, 2006), 71 FR 30037 (May 24, 2006) (‘‘First
NMS Extension Release’’).
15 See supra note 8.
16 Securities Exchange Act Release No. 55160
(January 24, 2007) (‘‘Second NMS Extension
Release’’). To reflect the extended Trading Phase
Date and avoid coinciding with major trading days
in June 2007, the Commission also extended the
Pilot Stocks Phase Date (as defined in the Second
NMS Extension Release) until July 9, 2007, and the
All Stocks Phase Date (as defined in the Second
NMS Extension Release) until August 20, 2007. In
contrast, the Specifications Date (as defined in the
Second NMS Extension Release) of October 16,
2006 has already passed and was not extended. In
addition, the Completion Date (as defined in the
Second NMS Extension Release) of October 8, 2007
was not changed
E:\FR\FM\31JAN1.SGM
31JAN1
Federal Register / Vol. 72, No. 20 / Wednesday, January 31, 2007 / Notices
the extended Trading Phase Date.17 The
Commission emphasizes, as it did in the
previous orders,18 that the de minimis
exemption does not relieve brokers and
dealers of their best execution
obligations under the federal securities
laws and SRO rules.
Accordingly, it is ordered, pursuant to
Section 11A of the Act and Rule 608(e)
thereunder,19 that participants of the
ITS Plan and their members are hereby
exempt from Section 8(d) of the ITS
Plan during the period covered by this
Order with respect to transactions in
DIAs and SPYs that are executed at a
price that is no more than three cents
lower than the highest bid displayed in
CQS and no more than three cents
higher than the lowest offer displayed in
CQS. This Order extends the de minimis
exemption from February 5, 2007
through March 4, 2007.
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7–1475 Filed 1–30–07; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–55163; File No. SR–Amex–
2007–11]
Self-Regulatory Organizations;
American Stock Exchange LLC; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change and
Amendment No. 1 Thereto Relating to
the Establishment of a Pilot Program
Increasing Position and Exercise
Limits for Options on the iShares
Russell 2000 Index Fund
January 24, 2007.
mstockstill on PROD1PC62 with NOTICES
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 January
22, 2007, the American Stock Exchange
LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with
the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I and II below, which Items have
been substantially prepared by Amex.
On January 22, 2007, Amex submitted
Amendment No. 1 to the proposed rule
change. Amex has filed the proposal
pursuant to Section 19(b)(3)(A) of the
17 The Commission expects most trading centers
to be operating consistent with the requirements of
Rule 611 by the Trading Phase Date.
18 See supra notes 3 to 8.
19 17 CFR 242.608(e).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
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15:08 Jan 30, 2007
Jkt 211001
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, as amended, from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Rule 904 to exempt options on the
iShares Russell 2000 Index Fund
(‘‘IWM’’) from the position and exercise
limits provided for under the Rule 904
Pilot Program and to increase the
standard position and exercise limits for
IWM as part of a six-month pilot (‘‘IWM
Pilot Program’’). The text of the
proposed rule change is available at
Amex, the Commission’s Public
Reference Room, and www.amex.com.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
Amex 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. Amex has prepared
summaries, set forth in Sections A, B,
and C below, of the most significant
aspects of such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend
Commentary .07 to Rule 904 on a sixmonth pilot basis to exempt options on
IWM from the Rule 904 Pilot Program.
Under the Rule 904 Pilot Program, the
position and exercise limits for IWM
would be reduced on January 22, 2007
from 500,000 to 250,000 contracts. The
Exchange now proposes to allow
position and exercise limits for options
on IWM to remain at 500,000 contracts
on a pilot basis, from January 22, 2007
through July 22, 2007.
In June 2005, as a result of a 2-for-1
stock split, the position limit for IWM
options was temporarily increased from
250,000 contracts (covering 25,000,000
shares) to 500,000 contracts (covering
50,000,000 shares). At the time of the
split, the furthest IWM option
expiration date was January 2007.
3 15
4 17
PO 00000
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6).
Frm 00071
Fmt 4703
Sfmt 4703
4547
Therefore, the temporary increase of the
IWM position limit will revert to the
pre-split level (as provided for in
connection with the Rule 904 Pilot
Program) of 250,000 contracts after
expiration in January 2007, or on
January 22, 2007.5
The Exchange believes that a position
limit of 250,000 contracts is too low and
may be a deterrent to the successful
trading of IWM options. Importantly,
options on IWM are 1⁄10th the size of
options on the Russell 2000 Index
(‘‘RUT’’), which have a position limit of
50,000 contracts.6 Traders who trade
IWM options to hedge positions in RUT
options are likely to find a position limit
of 250,000 contracts in IWM options too
restrictive and insufficient to properly
hedge. For example, if a trader held
50,000 RUT options and wanted to
hedge that position with IWM options,
the trader would need—at a minimum—
500,000 IWM options to properly hedge
the position. Therefore, the Exchange
believes that a position limit of 250,000
contracts is too low and may adversely
affect market participants’ ability to
provide liquidity in this product.
Additionally, IWM options have
grown to become one of the largest
options contracts in terms of trading
volume. For example, the volume in
options on IWM set a new single-day
record on June 8, 2006, when 760,803
contracts (120,229 calls and 640,574
puts) traded on that day. This record
level volume beat the previous singleday high of 727,521 contracts on May
17, 2006. Further, over the previous six
months, ending December 31, 2006, the
average daily trading volume (marketwide) of IWM options has been 300,409
contracts and a total of 2,444,470
contracts have traded on the Exchange.
As a result, the Exchange proposes
that options on IWM be subject to
position and exercise limits of 500,000
contracts on a pilot basis to run from
January 22, 2007 through July 22, 2007.7
The Exchange believes that increasing
position and exercise limits for IWM
options will lead to a more liquid and
5 See
Amex Information Circular #05–0397.
Amex Rule 904C; see also Securities
Exchange Act Release Nos. 45236 (January 2, 2002),
67 FR 1378 (January 10, 2002) (SR–Amex–2001–42)
(increase of position and exercise limits to 300,000
for QQQ options); and 51043 (January 14, 2005), 70
FR 3402 (January 24, 2005) (SR–Amex–2005–06)
(increase of position and exercise limits for options
on Standard and Poor’s Depositary Receipts from
75,000 to 300,000).
7 Pursuant to Rule 905, the exercise limit
established for IWM options shall be equivalent to
the position limit prescribed for IWM options in
Commentary .07 to Rule 904. The increased
exercise limits would only be in effect during the
pilot period, to run from January 22, 2007 through
July 22, 2007. See Amendment No. 1 to the
proposed rule change.
6 See
E:\FR\FM\31JAN1.SGM
31JAN1
]]>Agencies
[Federal Register Volume 72, Number 20 (Wednesday, January 31, 2007)]
[Notices]
[Pages 4545-4547]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-1475]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-55165]
Order Pursuant to Section 11A of the Securities Exchange Act of
1934 and Rule 608(e) Thereunder Extending a de minimis Exemption for
Transactions in Certain Exchange-Traded Funds From the Trade-Through
Provisions of the Intermarket Trading System
January 25, 2007.
This order extends, through March 4, 2007, a de minimis exemption
to the provisions of the Intermarket Trading System Plan (``ITS
Plan''),\1\ a national
[[Page 4546]]
market system plan,\2\ governing intermarket trade-throughs that
currently is due to expire on February 4, 2007. The de minimis
exemption was originally issued by the Commission on August 28, 2002
\3\ and extended on May 30, 2003,\4\ on March 3, 2004,\5\ on December
3, 2004,\6\ on September 6, 2005,\7\ and on June 28, 2006.\8\
---------------------------------------------------------------------------
\1\ The self-regulatory organizations (``SROs'') participating
in the ITS Plan include the American Stock Exchange LLC, the Boston
Stock Exchange, Inc., the Chicago Board Options Exchange, Inc., the
Chicago Stock Exchange, Inc., the National Stock Exchange, Inc.
(formerly the Cincinnati Stock Exchange, Inc.), the National
Association of Securities Dealers, Inc. (``NASD''), the New York
Stock Exchange LLC, NYSE Arca, Inc. (formerly the Pacific Exchange,
Inc.), and the Philadelphia Stock Exchange, Inc. (collectively, the
``participants''). See Securities Exchange Act Release No. 19456
(January 27, 1983), 48 FR 4938 (February 3, 1983).
\2\ Securities Exchange Act of 1934 (``Act'') Rule 608(c)
(formerly Rule 11Aa3-2(d)), 17 CFR 242.608(c), promulgated under
Section 11A, 15 U.S.C. 78k-1, of the Act requires each SRO to comply
with, and enforce compliance by its members and their associated
persons with, the terms of any effective national market system plan
of which it is a sponsor or participant. Rule 608(e) (formerly Rule
11Aa3-2(f)), 17 CFR 242.608(e), under the Act authorizes the
Commission to exempt, either unconditionally or on specified terms
and conditions, any SRO, member of an SRO, or specified security
from the requirement of the rule if the Commission determines that
such exemption is consistent with the public interest, the
protection of investors, the maintenance of fair and orderly markets
and the removal of impediments to, and perfection of the mechanisms
of, a national market system.
\3\ See Securities Exchange Act Release No. 46428 (August 28,
2002), 67 FR 56607 (September 4, 2002) (the ``August 2002 Order'').
The August 2002 Order granted relief through June 4, 2003.
\4\ See Securities Exchange Act Release No. 47950 (May 30,
2003), 68 FR 33748 (June 5, 2003) (the ``May 2003 Order''). The May
2003 Order granted relief through March 4, 2004.
\5\ See Securities Exchange Act Release No. 49356 (March 3,
2004), 69 FR 11057 (March 9, 2004) (the ``March 2004 Order''). The
March 2004 Order granted relief through December 4, 2004.
\6\ See Securities Exchange Act Release No. 50795 (December 3,
2004), 69 FR 71445 (December 9, 2004) (the ``December 2004 Order'').
The December 2004 Order granted relief through September 4, 2005.
\7\ See Securities Exchange Act Release No. 52382 (September 6,
2005), 70 FR 53695 (September 9, 2005) (the ``September 2005
Order''). The September 2005 Order granted relief through June 28,
2006.
\8\ See Securities Exchange Act Release No. 54063 (June 28,
2006), 71 FR 38433 (July 6, 2006) (the ``June 2006 Order''). The
June 2006 Order granted relief through February 4, 2007.
---------------------------------------------------------------------------
Specifically, this order continues the de minimis exemption from
compliance with Section 8(d)(i) of the ITS Plan with respect to two
specific exchange-traded funds (``ETFs''), the Dow Jones Industrial
Average ETF (``DIA'') and the Standard & Poor's 500 Index ETF
(``SPY'').\9\ By its terms, the June 2006 Order continued the exemption
from the trade-through provisions of the ITS Plan of any transactions
in the two ETFs that are effected at prices at or within three cents
away from the best bid and offer quoted in the Consolidated Quote
System (``CQS'') through February 4, 2007.
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\9\ The Commission limited the de minimis exemption to these two
securities because they share certain characteristics that may make
immediate execution of their shares highly desirable to certain
investors. In particular, trading in the two ETFs is highly liquid
and market participants may value an immediate execution at a
displayed price more than the opportunity to obtain a slightly
better price. Unlike prior orders, the December 2004, September
2005, and June 2006 extensions of the de minimis exemption applied
only to the DIA and the SPY, and not the QQQ, because, on December
1, 2004, trading of the QQQ transferred from the American Stock
Exchange to Nasdaq, and thus trades in the QQQ ceased to be subject
to the trade-through provisions of the ITS Plan. Accordingly, an
exemption for the QQQ was no longer necessary. See December 2004
Order, September 2005 Order, and June 2006 Order.
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In the Commission's previous orders to issue and extend the de
minimis exemption,\10\ the Commission discussed its basis for
determining that the de minimis exemption is consistent with the public
interest, the protection of investors, the maintenance of fair and
orderly markets and the removal of impediments to, and perfection of
the mechanisms of, a national market system. In the June 2006 Order,
the Commission further noted that:
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\10\ See supra notes 3 to 8.
In March 2004 and in May 2003, the Commission extended the three
cent de minimis exemption for additional nine-month periods, in
order to assess trading data associated with the de minimis
exemption and to consider whether to adopt the de minimis exemption
on a permanent basis, to adopt some other alternative solution, or
to allow the exemption to expire. As a result of its review of
trading data associated with the de minimis exemption, the
Commission has proposed, as part of its market structure
initiatives, Regulation NMS under the Act, which would include a new
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rule relating to trade-throughs.
On April 6, 2005, the Commission approved Regulation NMS under the
Act.\11\ In Regulation NMS, the Commission adopted an approach that,
among other things, protects only automated quotations and excludes
manual quotations from trade-through protection, and renders the de
minimis exemption unnecessary. Given the significant systems and other
changes necessary to implement Rule 610 and Rule 611,\12\ the
Commission originally established delayed compliance dates for Rule 610
and Rule 611, the first of which was scheduled to begin on June 29,
2006.\13\ In the September 2005 Order, the Commission stated that until
Regulation NMS is implemented, the reasons for maintaining the de
minimis exemption in effect continue to be valid, and thus the
Commission extended the de minimis exemption though June 28, 2006,
which was the date before the initial compliance date for Rule 610 and
Rule 611.
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\11\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496 (June 29, 2005).
\12\ Rule 610 generally prohibits national securities exchanges
and national securities associations from imposing unfairly
discriminatory terms that prevent or inhibit access to quotations,
and establishes a limit on access fees, and requires each national
securities exchange and national securities association to adopt,
maintain, and enforce written rules that prohibit their members from
engaging in a pattern or practice of displaying quotations that lock
or cross protected quotations. Rule 611 requires trading centers to
establish, maintain, and enforce written policies and procedures
reasonably designed to prevent the execution of trades at prices
inferior to protected quotations displayed by other trading centers,
subject to an applicable exception.
\13\ See supra note 11.
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On May 18, 2006, the Commission extended the compliance dates for
Rule 610 and Rule 611 to give trading centers additional time to
finalize the development of their new or modified trading systems, and
to give the securities industry sufficient time to establish the
necessary access to such trading systems.\14\ The initial compliance
date was extended to a series of five dates, beginning on October 16,
2006, for different functional stages of compliance, with February 5,
2007 (the ``Trading Phase Date'') being the final date for full
operation of Regulation NMS-compliant trading systems for initial
trade-through protection under Rule 611, as described in the First NMS
Extension Release. The Commission also extended the de minimis
exemption through February 4, 2007, which was the day before the
Trading Phase Date.\15\
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\14\ Securities Exchange Act Release No. 53829 (May 18, 2006),
71 FR 30037 (May 24, 2006) (``First NMS Extension Release'').
\15\ See supra note 8.
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On January 24, 2007, the Commission extended the Trading Phase Date
to March 5, 2007.\16\ Therefore, to maintain the status quo and avoid
requiring market participants to make short-term trading or programming
changes pending the extended implementation period for Rule 610 and
Rule 611 of Regulation NMS, it is appropriate to extend the de minimis
exemption through March 4, 2007, the day before
[[Page 4547]]
the extended Trading Phase Date.\17\ The Commission emphasizes, as it
did in the previous orders,\18\ that the de minimis exemption does not
relieve brokers and dealers of their best execution obligations under
the federal securities laws and SRO rules.
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\16\ Securities Exchange Act Release No. 55160 (January 24,
2007) (``Second NMS Extension Release''). To reflect the extended
Trading Phase Date and avoid coinciding with major trading days in
June 2007, the Commission also extended the Pilot Stocks Phase Date
(as defined in the Second NMS Extension Release) until July 9, 2007,
and the All Stocks Phase Date (as defined in the Second NMS
Extension Release) until August 20, 2007. In contrast, the
Specifications Date (as defined in the Second NMS Extension Release)
of October 16, 2006 has already passed and was not extended. In
addition, the Completion Date (as defined in the Second NMS
Extension Release) of October 8, 2007 was not changed.
\17\ The Commission expects most trading centers to be operating
consistent with the requirements of Rule 611 by the Trading Phase
Date.
\18\ See supra notes 3 to 8.
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Accordingly, it is ordered, pursuant to Section 11A of the Act and
Rule 608(e) thereunder,\19\ that participants of the ITS Plan and their
members are hereby exempt from Section 8(d) of the ITS Plan during the
period covered by this Order with respect to transactions in DIAs and
SPYs that are executed at a price that is no more than three cents
lower than the highest bid displayed in CQS and no more than three
cents higher than the lowest offer displayed in CQS. This Order extends
the de minimis exemption from February 5, 2007 through March 4, 2007.
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\19\ 17 CFR 242.608(e).
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7-1475 Filed 1-30-07; 8:45 am]
BILLING CODE 8011-01-P
