Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Approving Proposed Rule Change as Modified by Amendments No. 1, 3, and 4 Thereto To Reestablish a Quotation and Trading System, The PORTAL® Market, for Securities That Are Designated by Nasdaq as PORTAL Securities, 44196-44201 [E7-15288]
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44196
Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Notices
All submissions should refer to File
Number SR–CBOE–2007–89. 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, 100 F Street, NE., Washington,
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m.
Copies of such filing also will be
available for inspection and copying at
the principal office of the 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–CBOE–2007–89 and should
be submitted on or before August 28,
2007.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.16
Nancy M. Morris,
Secretary.
[FR Doc. E7–15310 Filed 8–6–07; 8:45 am]
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BILLING CODE 8010–01–P
16 17
CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE
COMMISSION
approves the proposed rule change, as
amended.
[Release No. 34–56172; File No. SR–
NASDAQ–2006–065]
II. Description of the Proposal
The National Association of Securities
Dealers, Inc. (‘‘NASD’’) created the
PORTAL Market in 1990,8
simultaneously with the SEC’s adoption
of Rule 144A (‘‘Rule 144A’’) under the
Securities Act of 1933 (‘‘Securities
Act’’),9 to be a new trading system for
the purpose of quoting, trading, and
reporting trades in securities eligible for
resale by Qualified Institutional Buyers
(‘‘QIBs’’) under Rule 144A.10
The PORTAL Market did not develop
as anticipated. The Exchange believes
this is, in part, because PORTAL
securities could only be traded in the
PORTAL Market and the original
PORTAL rules imposed trade reporting
for all transactions in PORTAL
securities at a time when there were no
trade reporting requirements for
privately-placed securities.11 In
addition, Nasdaq believes PORTAL did
not develop because it required use of
cumbersome technology for access to
the PORTAL Market computer system
for reporting purposes, which was a
stand-alone computer system.
After nearly a decade, NASD filed a
proposed rule change to delete many
features of the PORTAL Market that had
become obsolete including rules
governing the registration of PORTAL
Dealers, PORTAL Brokers, and PORTAL
Qualified Investors and rules that were
intended to regulate the quotation and
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Order
Approving Proposed Rule Change as
Modified by Amendments No. 1, 3, and
4 Thereto To Reestablish a Quotation
and Trading System, The PORTAL
Market, for Securities That Are
Designated by Nasdaq as PORTAL
Securities
July 31, 2007.
I. Introduction
On December 22, 2006, The NASDAQ
Stock Market LLC (‘‘Nasdaq’’ or
‘‘Exchange’’), filed with the Securities
and Exchange Commission (‘‘SEC’’ or
‘‘Commission’’) pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 a proposed rule change to
reestablish a quotation and trading
system, The PORTAL Market
(‘‘PORTAL’’ or the ‘‘PORTAL Market’’),
for securities that are designated by
Nasdaq as PORTAL securities. The
system would allow PORTAL
Participants 3 to trade with one another
in a closed system. On March 6, 2007,
Nasdaq filed Amendment No. 1 to the
proposed rule change.4 On April 3,
2007, Nasdaq filed Amendment No. 3 to
the proposed rule change. The proposed
rule change was published for comment
in the Federal Register on May 1, 2007.5
The Commission received seven
comment letters on the proposal from
six commenters.6 On July 16, 2007,
Nasdaq filed Amendment No. 4 to the
proposed rule change.7 This order
1 15
U.S.C. 78s(b)(l).
CFR 240.19b–4.
3 Defined infra.
4 Amendment No. 2 was filed and withdrawn on
April 3, 2007.
5 See Securities Exchange Act Release No. 55669
(April 25, 2007), 72 FR 23874 (May 1, 2007) (the
‘‘Notice’’).
6 See letters to Nancy M. Morris, Secretary,
Commission, from NYPPEX, dated May 18, 2007;
Lezlee Westine, President and CEO, TechNet, dated
May 22, 2007; William J. Ginivan, General Counsel,
Friedman, Billings, Ramsey & Co., Inc. (‘‘FBR’’),
dated May 22, 2007 and July 18, 2007; Deborah L.
Wince-Smith, President, Council on
Competitiveness, dated May 25, 2007; and Mary
Kuan, Managing Director and Assistant General
Counsel, Securities Industry and Financial Markets
Association (‘‘SIFMA’’), dated May 30, 2007. In
addition, an individual affiliated with Morgan
Stanley, John McGuire, submitted a general inquiry
with respect to the filing via e-mail on May 9, 2007.
7 In response to a comment made by SIFMA, in
Amendment No. 4, Nasdaq amended proposed Rule
6513 (Compliance with Rules and Registration
Requirements) so that it applies only to PORTAL
Dealers and PORTAL Brokers. Nasdaq stated that
2 17
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Fmt 4703
Sfmt 4703
the inclusion of PORTAL Qualified Investors
(defined infra) in this rule was an error. In addition,
Nasdaq stated that PORTAL would not be
operational for debt securities at this time. Once the
necessary changes are in place, Nasdaq will file a
proposed rule change stating when PORTAL will be
available for debt trading. Finally, Nasdaq removed
obsolete references in the PORTAL Rules to CINS.
This is a technical amendment and is not subject
to notice and comment.
8 See Securities Exchange Act Release No. 27956
(April 27, 1990), 55 FR 18781 (May 4, 1990) (SR–
NASD–88–23). The PORTAL Rules were
subsequently amended. See Securities Exchange
Act Release Nos. 28678 (December 6, 1990), 55 FR
51194 (December 12, 1990) (SR–NASD–90–50);
33326 (December 13, 1993), 58 FR 66388 (December
20, 1993) (SR–NASD–91–5); 34562 (August 19,
1994), 59 FR 44210 (August 26, 1994) (SR–NASD–
94–39); 35083 (December 12, 1994), 59 FR 65104
(December 16, 1994) (SR–NASD–94–65); 40424
(September 10, 1998), 63 FR 49623 (September 16,
1998) (SR–NASD–98–68); 43873 (January 23, 2001),
66 FR 8131 (January 29, 2001) (SR–NASD–99–65);
44042 (March 6, 2001), 66 FR 14969 (March 14,
2001) (SR–NASD–99–66).
9 See Securities Act Release No. 6862 (April 23,
1990), 55 FR 17933 (April 30, 1990).
10 17 CFR 230.144A.
11 Currently, NASD Rule 6732 requires that
transactions in PORTAL equity securities be
reported to the OTC Reporting Facility and
PORTAL debt securities be reported to the Trade
Reporting and Compliance Engine Service
(‘‘TRACE’’).
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Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Notices
trade reporting of PORTAL securities
between PORTAL participants using the
PORTAL system.12 Following approval
of this proposed rule change, Nasdaq’s
primary role in the PORTAL Market
became designating securities as
PORTAL eligible 13 which made those
securities eligible for book entry
services at The Depository Trust
Company (‘‘DTC’’).14
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Nasdaq’s PORTAL Proposal
Nasdaq has proposed an updated
version of the PORTAL Market, which
would operate as a facility of the
Exchange.15 The proposed amendments
to the PORTAL rules would: (i)
Establish qualification requirements for
brokers and dealers that are Nasdaq
members, and QIBs 16 that wish to have
12 See Securities Exchange Act Release No. 44042
(March 6, 2001), 66 FR 14969 (March 14, 2001)
(order approving SR–NASD–99–66). In this order,
the Commission also approved rules replacing
NASD’s trade reporting requirements with a
requirement that NASD members submit trade
reports of secondary market transactions in
PORTAL-designated equity securities through the
Automated Confirmation Transaction Service (now
know as the OTC Reporting Facility) and in
PORTAL U.S. high-yield debt securities through
TRACE.
13 Nasdaq staff historically had responsibility for
review of PORTAL Market applications to
determine the eligibility of securities and of
PORTAL Participants (including broker-dealers and
investors). Upon the separation of Nasdaq from the
NASD and the approval of Nasdaq as a registered
national securities exchange under Section 6 of the
Act, the review functions for PORTAL Market
eligibility were retained by Nasdaq, and the
PORTAL Market rules in the NASD Rule 5300
Series became the Nasdaq Rule 6500 Series. See
Securities Exchange Act Release No. 53128 (January
13, 2006), 71 FR 3550 (January 23, 2006).
14 Securities Exchange Act Release No. 33327
(December 13, 1993), 58 FR 67878 (December 22,
1993) (order approving a proposed rule change that
authorized DTC to make securities sold pursuant to
Rule 144A depository eligible provided that such
securities are designated for inclusion in a system
of a self-regulatory organization (‘‘SRO’’) approved
by the Commission for the reporting of quotation
and trade information on Rule 144A transactions).
15 Because the PORTAL Market is a facility of
Nasdaq, trades done on the PORTAL Market could
be considered trades done on a national securities
exchange and thus would be subject to Section
12(a) of the Exchange Act. This section provides
that it ‘‘shall be unlawful for any member, broker
or dealer to effect any transaction in any security
(other than an exempted security) on a national
securities exchange unless a registration is effective
as to such security.’’ 15 U.S.C. 78l(a). Section 12(b)
of the Act provides all equity and debt securities
must be registered before such securities may be
traded on a national securities exchange, unless
they are ‘‘exempted securities’’ or are otherwise
exempt from Exchange Act registration
requirements. In order to trade unregistered 144A
securities on the PORTAL Market, Nasdaq
requested, and the Commission provided,
exemptive relief pursuant to Section 36 of the
Exchange Act from Section 12(a) of the Exchange
Act to permit Nasdaq members to trade PORTALdesignated securities that are not registered under
Section 12(b) of the Exchange Act. See note 55,
infra.
16 The requirements for QIBs are set forth in Rule
144A.
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access to PORTAL; and (ii) implement
quotation, trade negotiation, and trade
reporting functions in the PORTAL
Market for PORTAL-designated
securities. Many of the rules proposed
by Nasdaq are substantially the same as
those approved by the Commission
when the PORTAL Market was first
implemented by NASD in 1990.17 The
proposed PORTAL Market, described in
detail in the Notice, is summarized
below.
Security Designation: PORTAL
designation is limited to those Rule
144A securities that are initially sold to
QIBs by a broker-dealer acting as initial
placement agent or initial purchaser.
Nasdaq would continue to qualify
‘‘restricted securities,’’ as that term is
defined in SEC Rule 144(a)(3),18 and
securities that are restricted pursuant to
contract or through the terms of the
security, for designation as PORTAL
securities based on, among other things,
the requirements for the resale of a
security under Rule 144A(d)(3) and
(d)(4).19 Nasdaq would have authority
under the PORTAL Rules to suspend or
terminate the designation of a PORTAL
security, thus removing the ability to
negotiate trades in the security through
PORTAL.
Broker-Dealer Access: Nasdaq
members that meet the PORTAL
qualification requirements would be
designated as ‘‘PORTAL Dealers,’’ who
could trade as principal, and ‘‘PORTAL
Brokers,’’ who would act as agent for
customers. PORTAL Dealers and
PORTAL Brokers would be permitted to
post anonymous one- or two-sided
indicative quotations in PORTAL
securities. In addition, PORTAL Dealers
and PORTAL Brokers would be
permitted to negotiate anonymously and
execute trades in PORTAL securities.
QIB Access: An institution that
executes a subscriber agreement, agrees
to comply with the PORTAL rules and
meets the $100 million and other
standards in Rule 144A to be a QIB
would be qualified by Nasdaq as a
‘‘PORTAL Qualified Investor.’’ PORTAL
Qualified Investors would be permitted
to access the PORTAL Market through a
password protected linkage and view
quotations of PORTAL Dealers and
PORTAL Brokers, and confirm
transactions when the PORTAL
Qualified Investor uses a PORTAL
17 See
note 8, supra.
18 17 CFR 230.144(a)(3).
19 17 CFR 230.144A(d)(3) and (d)(4). Nasdaq has
represented that in the future, it will consider
allowing Regulation D securities to participate in
PORTAL so long as PORTAL Market Information
would continue to be available only to PORTAL
Participants. See Response to Comments, infra note
29, at 3.
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44197
Dealer or PORTAL Broker to execute a
trade in PORTAL. PORTAL Qualified
Investors would not be permitted to
enter quotations in the PORTAL system
or enter orders directly into PORTAL.
Trade Negotiation/Execution:
PORTAL has electronic negotiation
features that allow PORTAL Dealers and
PORTAL Brokers to negotiate both
openly and anonymously and execute
trades in PORTAL securities. All quotes
in PORTAL would be indicative.
PORTAL Qualified Investors would not
be permitted to participate in
negotiations. Once an anonymous trade
was negotiated in PORTAL, the identity
of the counter-parties would be revealed
to each other for purposes of
comparison, confirmation, and
settlement of the trade.
Trade Reporting: Trade reports in
reportable PORTAL debt and equity
securities pursuant to NASD Rule 6732
would be forwarded by Nasdaq to
TRACE and the OTC Reporting Facility,
respectively.
Dissemination of PORTAL Trade
Report Information: All trade report
information for trades negotiated via
PORTAL would be disseminated in
PORTAL to PORTAL Brokers, PORTAL
Dealers, and PORTAL Qualified
Investors (‘‘PORTAL Participants’’), but
would not include the identity of the
parties and, in the case of PORTAL debt,
would not aggregate or otherwise follow
the dissemination protocols applicable
to debt trades reported to TRACE.20
PORTAL Participants would be
prohibited from disclosing any PORTAL
Market information, including
quotations, transactions, and other
information 21 displayed in the PORTAL
Market (‘‘PORTAL Market
Information’’), to any party other than
another PORTAL Participant. Nasdaq
would not disseminate PORTAL Market
Information to the public.
Settlement: Trades in equity securities
that have been compared and confirmed
will be forwarded automatically to an
appropriate subsidiary of Depository
Trust & Clearing Corporation (‘‘DTCC’’)
for settlement. Nasdaq also intends, at a
future date, to provide the ability to
forward all PORTAL trades in debt
securities to an appropriate subsidiary
of DTCC for settlement.
Regulatory Surveillance: NASD
currently provides and would continue
20 See Notice, 72 FR at 23877. To quote, execute,
and view trade report information on any Rule
144A investment-grade debt security in PORTAL,
the security must be qualified as a PORTAL
security. Trade report information on Rule 144A
investment-grade debt that is not a PORTAL
security cannot be viewed in PORTAL.
21 ‘‘Other information’’ may include information
such as which other PORTAL Participants are in the
system, for example.
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Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Notices
to provide surveillance of the trade
reports in PORTAL securities that are
submitted through TRACE and the OTC
Reporting Facility. Real-time
surveillance of quoting and trading
activity in PORTAL will be conducted
by Nasdaq’s MarketWatch Department.
SEC Exemptions: Nasdaq has
requested exemptions and no-action
relief so that the PORTAL Market can
operate as described in this filing.22 In
summary, Nasdaq requested the
following exemptions: Rule 15c2–11
under the Act to allow broker-dealers to
post quotations in PORTAL securities
without gathering the information
required by that rule; 23 Section 12(a) 24
of the Act which requires securities
traded on a national securities exchange
to be registered, to permit Nasdaq
members to trade securities that are not
registered under section 12(b) of the
Act; 25 and staff no-action relief from
Section 12(g) of the Act 26 to permit
foreign private issuers to continue to be
eligible for the exemption under Rule
12g3–2(b) under the Exchange Act.27
III. Comments
Seven comment letters were received
on the proposal. The letters from
NYPPEX, TechNet, and the Council on
Competitiveness expressed general
support for the proposal.28 The letters
from SIFMA and FBR raised questions
and issues discussed below. Nasdaq
responded to those comments.29
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A. SIFMA
In its comment letter, SIFMA sought
clarification on numerous points,
including: trade reporting (the scope of
information that would be reported,
22 In connection with its approval of PORTAL in
1990 (see note 8, supra), the Commission issued
similar exemptions. See letter to Frank J. Wilson,
Executive Vice President and General Counsel,
NASD (‘‘Wilson’’), from Mary E.T. Beach, Associate
Director, Division of Corporation Finance,
Commission, dated January 16, 1990, and letter to
Wilson from Jonathan G. Katz, Secretary,
Commission, dated April 27, 1990.
23 17 CFR 240.15c2–11. See letter from Thomas P.
Moran, Associate General Counsel, Nasdaq, to
James A. Brigagliano, Assistant Director, Division of
Market Regulation, Commission, dated June 28,
2007.
24 15 U.S.C. 78l(a).
25 15 U.S.C. 78l(a) and 15 U.S.C. 78l(b). See letter
to Nancy M. Morris, Secretary, Commission, from
Thomas P. Moran, Associate General Counsel,
Nasdaq, dated June 28, 2007.
26 15 U.S.C. 78l(g).
27 17 CFR 240.12g3–2(b). See letter to Paul Dudek,
Chief Counsel, Division of Corporation Finance,
Commission, from Thomas P. Moran, Associate
General Counsel, Nasdaq, dated July 24, 2007.
28 Mr. McGuire submitted a one-line, nonsubstantive e-mail regarding the proposal.
29 See letters to Nancy M. Morris, Secretary,
Commission, from Thomas P. Moran, Associate
General Counsel, Nasdaq, dated June 28, 2007 and
July 23, 2007 (‘‘Response to Comments’’).
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15:56 Aug 06, 2007
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who would be responsible for
submitting the information, and the
timing of submission); the information
that would be disseminated to PORTAL
Participants; the role of third-party
vendors in the dissemination of
PORTAL Market Information; the extent
to which PORTAL Qualified Investors
would have direct access to the trading
and negotiation functionality of
PORTAL; and the rationale for limiting
order size. In its Response to Comments,
Nasdaq provided further explanation
and details regarding these points.30
SIFMA expressed concern regarding
dissemination of PORTAL Market
Information. SIFMA requested that
Nasdaq consider whether dissemination
of any trade information regarding
PORTAL securities is necessary or
beneficial and whether such
dissemination would negatively affect
liquidity and the willingness of
investors to commit capital in
unregistered securities. Nasdaq
responded, in part, that it believes
dissemination of information to
PORTAL Participants is likely to
increase their ability to make better
informed decisions, thereby increasing
confidence and liquidity in the market
for 144A securities.
SIFMA also suggested that if trade
report information is to be disseminated
to PORTAL Participants, dissemination
should follow protocols currently
applicable to trade report information
provided to TRACE 31 and the OTC
Reporting Facility to avoid immediately
exposing ‘‘trading patterns and
intentions of market participants.’’
Nasdaq responded that it disagrees and
does not believe dissemination of
transaction information should be
restricted based on limits or time
periods applicable to TRACE or the OTC
Reporting Facility, because participation
in PORTAL is voluntary, and PORTAL
Participants know that their trades will
be immediately disseminated to other
PORTAL Participants and, if required,
reported for regulatory purposes.32
30 See Response to Comments, supra note 29, at
2–4 and 7–8.
31 SIFMA states that TRACE provides that the
volumes for investment grade securities are capped
at five million, and volumes for non-investment
grade securities are capped at one million.
TRACE does not provide information on
mortgage- or asset-backed securities or
collateralized mortgage obligations. See NASD Rule
6710. NASD Rule 6230 requires that trades be
reported with 15 minutes.
32 Nasdaq stated that it is willing to consider
modifying the dissemination parameters of
PORTAL debt trades in the system to follow current
TRACE standards where the quantity for individual
debt trades disseminated is capped at five million
for investment-grade securities, and one million for
non-investment grade securities. See Response to
Comments, supra note 29, at 3.
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Sfmt 4703
SIFMA also raised concerns with
respect to regulatory jurisdiction. First,
SIFMA encouraged Nasdaq, the NASD,
and the SEC to work together with
respect to PORTAL to avoid overlapping
and potentially inconsistent regulation.
Nasdaq stated it agrees that regulatory
inconsistencies should be avoided
where possible, and noted that the
proposal is not expected to materially
increase any such burdens.
Next, SIFMA took issue with the
requirement that access to the system as
a PORTAL Broker or PORTAL Dealer is
limited to Nasdaq members and sought
clarification of Nasdaq’s scope of
authority over PORTAL Qualified
Investors under proposed Rule 6513
(Compliance with Rules and
Registration Requirements). Nasdaq
noted that since PORTAL is a trading
facility of the Nasdaq exchange,
execution access to its system must be
limited to Nasdaq members registered as
PORTAL Brokers and PORTAL Dealers.
Nasdaq has limited authority over nonmembers.
With regard to SIFMA’s request for
clarification regarding the appropriate
scope of Nasdaq’s authority over
PORTAL Qualified Investors, Nasdaq
acknowledged that its regulatory
authority over those participating in
PORTAL is limited to PORTAL Brokers
and PORTAL Dealers, as these would be
the only PORTAL Participants that are
required to be Nasdaq members and
thus subject to Nasdaq’s regulatory
jurisdiction. Nasdaq stated that it had
included PORTAL Qualified Investors
in the rule in error. In Amendment No.
4, Nasdaq amended Rule 6513 to reflect
that Nasdaq’s authority to discipline a
participant for failure to comply with
any of the rules or requirements
applicable to the PORTAL Market
extends only to PORTAL Brokers and
PORTAL Dealers. Nasdaq does not have
authority to discipline PORTAL
Qualified Investors that are not Nasdaq
members. It can enforce, however, the
PORTAL rules through its ability to
approve, deny, suspend or terminate the
registration of an investor as a PORTAL
Qualified Investor.33
Finally, SIFMA argued that the
subscriber and related agreements
should be included in the proposal.
Nasdaq stated that the SEC does not
routinely require commercial
agreements of an SRO to be filed, and
Nasdaq believes that nothing in the
present proposal should require
inclusion of these agreements. SIFMA
commented that Nasdaq should make its
exemptive requests public so that its
members may review the legal analysis
33 See
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and policy basis for those requests.
Nasdaq declined and noted that it is not
the general practice of the SEC to seek
public comment on exemptions, and
Nasdaq does not believe that the
Commission needs to do so for this
proposal.
jlentini on PROD1PC65 with NOTICES
B. FBR
FBR’s comments focused on three
areas: The PORTAL Qualified Investor
concept; accredited investors; and
depository eligibility.
First, FBR argues that limiting
participation in the PORTAL Market to
PORTAL Qualified Investors, and
limiting access to PORTAL Market
Information to those participants, will
create a hidden market. FBR believes
that PORTAL Brokers and PORTAL
Dealers should be permitted to share
PORTAL Market Information with
anyone who is eligible to sell restricted
shares pursuant to Rule 144A, including
Accredited Investors and all QIBs. FBR
states that its inability to share PORTAL
Market Information with its customers
is in conflict with its obligations under
the securities laws and rules and NASD
Rules, to treat customers, who are
qualified to buy and sell under Rule
144A, fairly.
Nasdaq responds that nothing in its
proposal prevents FBR from sharing
PORTAL Market Information with its
QIB customers so long as those
customers are qualified as PORTAL
Qualified Investors by Nasdaq. Nasdaq
states that the limitation exists to ensure
that Nasdaq has reasonable procedures
to prevent pricing information from
reaching non-QIBs, given that it is an
SRO responsible for enforcing its rules.
Further, Nasdaq notes that the
dissemination by PORTAL Dealers and
PORTAL Brokers of PORTAL Market
quotations and last sale report
information of other PORTAL Dealers
and PORTAL Brokers to investors not
qualified by Nasdaq could constitute a
prohibited general solicitation under
Rule 144A.
Nasdaq does, however, agree that
restrictions on dissemination of
PORTAL Market Information could
prohibit a PORTAL Dealer from sharing
its own quote in a PORTAL security
with its own customers.34 Nasdaq stated
it would consider how to modify the
rules before PORTAL is operational so
that restrictions on transmission of
PORTAL information do not apply to a
PORTAL Dealer’s provision of its
proprietary quote information to an
34 See
Response to Comments, supra note 29, at
10.
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15:56 Aug 06, 2007
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established customer of that dealer,35
however, FBR argues that this is not an
acceptable modification because it
could result in a situation in which a
PORTAL Broker or PORTAL Dealer is
permitted to disclose to its customers
certain prices that are available but are
not the best price if the PORTAL Broker
or PORTAL Dealer is not itself quoting
at the best price. Further, FBR notes, the
modification would not permit
disclosure of last sale information. FBR
believes that such a result would not be
in the best interest of investors and
could violate a broker-dealer’s duty of
fair dealing and subject them to liability
under Rule 10b–5 under the Exchange
Act.
FBR also believes that Nasdaq’s
proposed requirement that QIBs be
approved by Nasdaq in order to have
access to PORTAL Market Information
is a departure from the PORTAL Rules
that were approved by the Commission
when the PORTAL Market was first
established.36 Nasdaq notes that
PORTAL will operate under uniform,
explicit standards governing access and
information receipt, and a QIB would
incur only modest costs to become a
PORTAL Qualified Investor if it wants
access to PORTAL Market Information.
Further, Nasdaq points out that the
original PORTAL Market was intended
to be an entirely ‘‘closed’’ system.
Investors were only permitted to
execute a transaction in a PORTAL
security if the investor registered as a
PORTAL Qualified Investor and then
executed the transaction through a
PORTAL Dealer or PORTAL Broker
through the PORTAL system. Therefore,
Nasdaq argues, there was no need in the
original PORTAL system to restrict the
dissemination of PORTAL Market
Information outside of the PORTAL
Market.
Finally, FBR argues that depository
eligibility of a security should not be
premised on PORTAL eligibility. FBR
argues that DTC’s rule requiring Rule
144A securities to be included in an
SRO system for the reporting of
quotation and trade information of
resale transactions, in order for those
securities to be eligible for DTC’s
depository services is unnecessary and
could impede competition between
Nasdaq and alternative trading systems
(‘‘ATSs’’). Currently, PORTAL is the
only facility that satisfies the eligibility
standard. Nasdaq disagrees and points
out that nothing in DTC’s rules would
preclude another SRO from establishing
and operating a system for quoting,
35 Id. Any such change must be filed as a
proposed rule change with the Commission.
36 See note 6, supra.
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44199
trading, and reporting Rule 144A
securities and thereby be eligible to
obtain DTC’s depository services on
behalf of such securities.
IV. Discussion and Commission
Findings
A. Sections 6 and 11A(a)(1) of the Act
After careful consideration of the
proposal, the comment letters, and
Nasdaq’s Response to Comments, the
Commission finds that the proposed
rule change is consistent with the
provisions of section 6 of the Act,37 in
general and with section 6(b)(5) of the
Act,38 in particular, in that it is designed
to prevent fraudulent and manipulative
acts and practices, to promote just and
equitable principles of trade, to remove
impediments to a free and open market
and a national market system, and, in
general, to protect investors and the
public interest. The PORTAL Market
will facilitate the trading of Rule 144A
securities and will provide a centralized
system for the display of interest in Rule
144A securities. Rule 144A(d)
conditions the exemption from
registration of securities pursuant to
Section 5 of the Securities Act 39 on
offering and selling the securities only
to QIBs. Consequently, Nasdaq
structured the PORTAL Market as a
closed system for trading of Rule 144A
securities among QIBs. Nasdaq has
implemented procedures to qualify QIBs
under its rules. In light of Nasdaq’s
procedures as described in the proposed
rule change, PORTAL Participants may
rely on Nasdaq’s procedures for
establishing a reasonable belief that a
prospective purchaser is a QIB.40
In addition, the Commission believes
that the proposed rule change is
consistent with the goals of section
11A(a)(1) of the Act.41 Section 11A(a)(1)
articulates the Congressional findings
and policy goals and objectives
respecting the development of a
national market system. Essentially,
Congress found that new data
processing and communication
techniques should be applied to
improve the efficiency of market
operations, broaden the distribution of
market information, enhance
opportunities to achieve best execution
37 15
U.S.C. 78f.
U.S.C. 78f(b)(5).
39 15 U.S.C. 77e.
40 If all the conditions in Rule 144A(d) are not
met, transactions in restricted securities may be
deemed distributions and persons offering or selling
such securities may be deemed underwriters within
the meaning of Sections 2(a)(11) and 4(1) of the
Securities Act or a participant in a distribution of
securities with the meaning of Section 4(3)(C) of the
Securities Act. See discussion at nn. 9–13, supra.
41 15 U.S.C. 78k–1(a)(1).
38 15
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and promote competition among market
participants. That provision stresses the
importance of implementing
communication enhancements that will
advance the efficiency and effectiveness
of a securities market in servicing the
needs of investors. The Commission
believes that the changes to the
PORTAL Market contained in this
proposed rule change should provide
these benefits and help to enhance the
efficiency of the market for Rule 144Aeligible securities.
jlentini on PROD1PC65 with NOTICES
B. Rule 144A Under the Securities Act
Because Nasdaq has designed the
amendments to the PORTAL Market to
facilitate compliance with Rule 144A,
section 6(b)(1) of the Act 42 also requires
a determination as to whether it is
reasonably designed to accomplish this
purpose.43 The Commission believes
that the PORTAL system is designed so
that participants who comply with its
requirements will also be in compliance
with the requirements of Rule 144A,
assuming they also provide information
upon request in compliance with Rule
144A(d)(4).
Rule 144A is available only to
institutional investors meeting the
definition of QIB in Rule 144A(a)(1). A
seller is required to form a reasonable
belief that a purchaser is a QIB as the
term is defined in Rule 144A(a)(1). With
the exception of broker-dealers, a QIB is
required to, in the aggregate, own and
invest on a discretionary basis at least
$100 million in securities of nonaffiliated issuers. The proposed
amendments to the PORTAL rules
require that any investor applying to
qualify as a PORTAL Qualified Investor
meet the Rule 144A standards for QIBs.
Rule 144A(d)(2) requires that the
seller of 144A securities take reasonable
steps to ensure that the purchaser is
aware that the seller may rely on Rule
144A. To meet this requirement of Rule
144A, the proposed amendments to the
PORTAL rules also provide in the
designation requirements for PORTAL
Qualified Investors that applicants sign
an undertaking in a subscriber
agreement that states that they are aware
that they may purchase a PORTAL
security from another QIB who may rely
on an exemption from the provisions of
section 5 of the Securities Act 44
pursuant to Rule 144A.
The PORTAL rules also have
eligibility requirements for admitting
42 15
U.S.C. 78f(b)(1).
6(b)(1) of the Act requires that Nasdaq,
as a national securities exchange, be so organized
and have the capacity to enforce compliance with,
among other things, the federal securities laws. See
15 U.S.C. 78f(b)(1).
44 15 U.S.C. 77(e).
43 Section
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15:56 Aug 06, 2007
Jkt 211001
securities into PORTAL that parallel the
Rule 144A eligibility requirements for
securities. The PORTAL rules require
that the security be eligible to be sold
pursuant to Rule 144A under the
Securities Act. The application for
designation of a PORTAL security
requires the submission of specific
information to Nasdaq necessary to
support the applicant’s claim that the
security meets the requirements of Rule
144A.
Furthermore, Rule 144A conditions
the availability of the exemption on
certain information being available to
holders and prospective purchasers.
Rule 144A(d)(4) provides that, with
respect to securities of an issuer that is
not subject to section 13 of the Act,45
section 15(d) of the Act,46 exempt from
reporting pursuant to Rule 12g3–2(b)
under the Act,47 or a foreign government
eligible to register securities under
Schedule B of the Securities Act, the
holder and a prospective purchaser
designated by the holder must have the
right to obtain from the issuer, upon
request of the holder, and the purchaser
must have received at or prior to the
time of sale, upon such purchaser’s
request to the holder, certain
information about the issuer. Nasdaq
has designed PORTAL to comply with
this aspect of Rule 144A because the
PORTAL rules currently require that a
security meet these Rule 144A
requirements and that the issuer
undertake to provide the information
required by Rule 144A(d)(4) where
applicable.
PORTAL is designed to be a trading
market in restricted securities limited to
highly sophisticated investors. In
adopting Rule 144A, the Commission
noted that ‘‘[t]he transactions covered
by the safe harbor are private
transactions’’ that do not require the
protections of section 5 of the Securities
Act.48 The Commission believes that
broad dissemination of trading
information in this limited context is
not desirable. Nasdaq’s restricting the
information to PORTAL Qualified
Investors to allow Nasdaq to prevent
PORTAL Market Information from
reaching non-QIBs in this context is
reasonable.
In addition to designing the PORTAL
rules to facilitate compliance with the
requirements of Rule 144A, the
proposed rule change would structure
PORTAL to limit the possibility that
restricted securities enter the U.S. retail
market by requiring that PORTAL45 15
U.S.C. 78m.
U.S.C. 78o(d).
47 17 CFR 240.12g3–2(b).
48 See note 9, supra.
46 15
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Sfmt 4703
designated securities be assigned a
CUSIP 49 number that is different than
the CUSIP number assigned to any
securities of the same class that do not
satisfy the eligibility requirements for
PORTAL securities. The security
explanation protocol employed by
Standard & Poor’s related to the CUSIP
number assigned to PORTAL securities
specifically distinguishes those
securities from all other publicly-traded
and restricted securities by using the
words ‘‘Rule 144A’’ and ‘‘PORTAL.’’ For
these reasons, the Commission believes
that PORTAL, as proposed, is
reasonably designed to facilitate
compliance with Rule 144A, so long as
there is compliance with the PORTAL
rules and procedures.50
C. Exemptions and No-Action Relief
Requests
The Commission has granted Nasdaq
exemptions from Rule 15c2–11 under
the Act 51 to allow brokers and dealers
to post quotations in PORTAL securities
without first gathering information
required by that rule 52 and Section
12(a) 53 of the Act to permit trading of
securities not registered under section
12(b) 54 of the Act; 55 and the staff has
granted no-action relief with respect to
section 12(g) 56 of the Act to permit
foreign private issuers to continue to be
eligible for the exemption under Rule
12g3–2(b) 57 of the Act.58
D. Impact on Competition, Efficiency
and Capital Formation
Section 3(f) of the Act requires that
the Commission consider whether
Nasdaq’s proposal will promote
efficiency, competition, and capital
49 Committee on Uniform Securities Identification
Procedures.
50 The Commission notes that information shall
still be provided on request, regardless of the
exemption for PORTAL securities, as applicable,
pursuant to Rule 144A(d)(4). Further, Rule 6502
authorizes Nasdaq to suspend or terminate a
security’s PORTAL designation if a holder or
prospective purchaser did not receive information
as required by Rule 144A(d)(4).
51 17 CFR 240.15c2–11.
52 See letter from James A. Brigagliano, Associate
Director, Division of Market Regulation,
Commission, to Thomas P. Moran, Associate
General Counsel, Nasdaq, dated July 31, 2007.
53 15 U.S.C. 78l(a).
54 15 U.S.C. 78l(b).
55 See Securities Exchange Act Release No. 56176,
(July 31, 2007), Order Granting The NASDAQ Stock
Market, LLC’s Application for an Exemption
Pursuant to Section 36 of the Securities Exchange
Act of 1934 (‘‘Exemption Order’’).
56 15 U.S.C. 78l(g).
57 17 CFR 240.12g3–2(b).
58 See letter from Paul Dudek, Chief, Office of
International Corporate Finance, Division of
Corporation Finance, Commission, to Thomas P.
Moran, Associate General Counsel, Nasdaq, dated
July 31, 2007.
E:\FR\FM\07AUN1.SGM
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Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Notices
formation.59 The Commission has
considered the merits of the issues
raised by each of the commenters and
has concluded that the PORTAL rules,
as proposed, are consistent with the Act.
The Commission notes that in its
response to comments, Nasdaq provided
SIFMA with additional information
regarding the operation of the PORTAL
Market and believes Nasdaq sufficiently
responded to SIFMA’s comments. The
Commission agrees with Nasdaq, in
particular, that the prompt and
complete dissemination of PORTAL
Market Information to PORTAL
Participants should allow PORTAL
Participants to better evaluate their
decisions regarding trading in the
PORTAL Market and should result in
increased investor confidence and
liquidity in the PORTAL Market. The
Commission also notes that if a
PORTAL Participant does not want its
trade information disseminated to other
PORTAL Participants, there is no
requirement that the Participant utilize
Nasdaq’s system for effecting its trade;
use of the PORTAL Market is voluntary.
Furthermore, the Commission agrees
that Nasdaq need not make the
subscriber and related agreements part
of this proposal, nor does Nasdaq need
to make its exemption requests public.
The Commission does not believe that
Nasdaq’s proposal is anti-competitive
because of the eligibility standard in
DTC’s rules. Nasdaq does not have any
authority with respect to DTC’s rules.
DTC’s rules provide that DTC is
authorized to make 144A securities
eligible for deposit, book-entry delivery,
and other depository services, provided
that any such Rule 144A securities are
designated for inclusion in a system of
an SRO approved by the Commission
for the reporting of quotation and trade
information of Rule 144A
transactions.60 In approving the
proposed rule change establishing the
DTC eligibility requirement that Rule
144A securities must be included in an
SRO Rule 144A System, such as the
PORTAL Market, the Commission noted
a crucial feature of any such system
would be a requirement that the SRO’s
members report trades involving
securities using the system on a routine
basis to the SRO, along with information
that will facilitate detection of securities
law violations.61
jlentini on PROD1PC65 with NOTICES
59 15
U.S.C. 78c(f).
Securities Exchange Act Release No. 33327
(December 13, 1993); 58 FR 57878 (December 22,
1993) (SR–DTC–90–06).
61 Given the evolution in the market for these
securities since DTC’s rule was adopted, the
Commission believes it would be reasonable for
DTC to review this requirement.
60 See
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15:56 Aug 06, 2007
Jkt 211001
The Commission believes that reestablishing the PORTAL Market as a
quoting and trading system is a
reasonable effort by Nasdaq to enhance
the quality of the Rule 144A market by
providing a centralized market and
information to QIBs, promoting greater
efficiency in executions, and increasing
overall market transparency. While the
PORTAL Market will provide a system
for quoting and trading Rule 144A
securities, it does not represent an
exclusive means for selling or
purchasing Rule 144A securities, nor
does it prevent broker-dealers from
seeking alternative trading venues for
such transactions.
V. Conclusion
It is therefore ordered, pursuant to
section 19(b)(2) of the Act,62 that the
proposed rule change (SR–NASDAQ–
2006–065), as amended, be, and hereby
is, approved.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.63
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7–15288 Filed 8–6–07; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–56175; File No. SR–NASD–
2007–055]
Self-Regulatory Organizations;
National Association of Securities
Dealers, Inc. (n/k/a Financial Industry
Regulatory Authority, Inc.); Notice of
Filing of Proposed Rule Change
Relating to Interpretative Material 9216,
Violations Appropriate for Disposition
Under Plan Pursuant to SEC Rule 19d–
1(c)(2)
July 31, 2007.
Pursuant to section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that on July 24,
2007, the National Association of
Securities Dealers, Inc. (‘‘NASD’’) filed
with the Securities and Exchange
Commission (‘‘SEC’’ or ‘‘Commission’’)
the proposed rule change as described
in Items I, II, and III below, which Items
have been substantially prepared by
NASD.3 The Commission is publishing
62 15
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 On July 26, 2007, the Commission approved a
proposed rule change filed by NASD to amend
NASD’s Certificate of Incorporation to reflect its
63 17
PO 00000
Frm 00126
Fmt 4703
Sfmt 4703
44201
this notice to solicit comments on the
proposed rule change from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
NASD is proposing to amend
Interpretative Material 9216 (Violations
Appropriate for Disposition Under Plan
Pursuant to SEC Rule 19d–1(c)(2)) (‘‘IM–
9216’’) to expand the list of violations
eligible for disposition under NASD’s
Minor Rule Violation Plan (‘‘MRVP’’).
The proposed rule change also would
delete from IM–9216 references to
NASD rules that have been rescinded.
The text of the proposed rule change is
available at NASD, the Commission’s
Public Reference Room, and https://
www.finra.org.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
NASD 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. NASD 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
On November 28, 2006, NASD and
the NYSE Group, Inc. (‘‘NYSE Group’’)
announced a plan to consolidate their
member regulation operations into a
combined organization (the
‘‘Transaction’’) that will be the sole U.S.
private-sector provider of member firm
regulation for securities firms that do
business with the public.4 This
consolidation will streamline the
broker-dealer regulatory system,
combine technologies, permit the
establishment of a single set of rules and
group examiners with complementary
name change to the Financial Industry Regulatory
Authority, Inc., or FINRA, in connection with the
consolidation of the member firm regulatory
functions of NASD and NYSE Regulation, Inc. See
Securities Exchange Act Release No. 56146 (July 26,
2007).
4 On July 26, 2007, the Commission approved
amendments to NASD’s By-Laws to implement
governance and related changes to accommodate
the consolidation of the member firm regulatory
functions of NASD and NYSE Regulation, Inc. See
Securities Exchange Act Release No. 56145 (July 26,
2007).
E:\FR\FM\07AUN1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 151 (Tuesday, August 7, 2007)]
[Notices]
[Pages 44196-44201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15288]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-56172; File No. SR-NASDAQ-2006-065]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order
Approving Proposed Rule Change as Modified by Amendments No. 1, 3, and
4 Thereto To Reestablish a Quotation and Trading System, The
PORTAL[supreg] Market, for Securities That Are Designated by Nasdaq as
PORTAL Securities
July 31, 2007.
I. Introduction
On December 22, 2006, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange''), filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to reestablish a quotation and
trading system, The PORTAL[supreg] Market (``PORTAL'' or the ``PORTAL
Market''), for securities that are designated by Nasdaq as PORTAL
securities. The system would allow PORTAL Participants \3\ to trade
with one another in a closed system. On March 6, 2007, Nasdaq filed
Amendment No. 1 to the proposed rule change.\4\ On April 3, 2007,
Nasdaq filed Amendment No. 3 to the proposed rule change. The proposed
rule change was published for comment in the Federal Register on May 1,
2007.\5\ The Commission received seven comment letters on the proposal
from six commenters.\6\ On July 16, 2007, Nasdaq filed Amendment No. 4
to the proposed rule change.\7\ This order approves the proposed rule
change, as amended.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(l).
\2\ 17 CFR 240.19b-4.
\3\ Defined infra.
\4\ Amendment No. 2 was filed and withdrawn on April 3, 2007.
\5\ See Securities Exchange Act Release No. 55669 (April 25,
2007), 72 FR 23874 (May 1, 2007) (the ``Notice'').
\6\ See letters to Nancy M. Morris, Secretary, Commission, from
NYPPEX, dated May 18, 2007; Lezlee Westine, President and CEO,
TechNet, dated May 22, 2007; William J. Ginivan, General Counsel,
Friedman, Billings, Ramsey & Co., Inc. (``FBR''), dated May 22, 2007
and July 18, 2007; Deborah L. Wince-Smith, President, Council on
Competitiveness, dated May 25, 2007; and Mary Kuan, Managing
Director and Assistant General Counsel, Securities Industry and
Financial Markets Association (``SIFMA''), dated May 30, 2007. In
addition, an individual affiliated with Morgan Stanley, John
McGuire, submitted a general inquiry with respect to the filing via
e-mail on May 9, 2007.
\7\ In response to a comment made by SIFMA, in Amendment No. 4,
Nasdaq amended proposed Rule 6513 (Compliance with Rules and
Registration Requirements) so that it applies only to PORTAL Dealers
and PORTAL Brokers. Nasdaq stated that the inclusion of PORTAL
Qualified Investors (defined infra) in this rule was an error. In
addition, Nasdaq stated that PORTAL would not be operational for
debt securities at this time. Once the necessary changes are in
place, Nasdaq will file a proposed rule change stating when PORTAL
will be available for debt trading. Finally, Nasdaq removed obsolete
references in the PORTAL Rules to CINS. This is a technical
amendment and is not subject to notice and comment.
---------------------------------------------------------------------------
II. Description of the Proposal
The National Association of Securities Dealers, Inc. (``NASD'')
created the PORTAL Market in 1990,\8\ simultaneously with the SEC's
adoption of Rule 144A (``Rule 144A'') under the Securities Act of 1933
(``Securities Act''),\9\ to be a new trading system for the purpose of
quoting, trading, and reporting trades in securities eligible for
resale by Qualified Institutional Buyers (``QIBs'') under Rule
144A.\10\
---------------------------------------------------------------------------
\8\ See Securities Exchange Act Release No. 27956 (April 27,
1990), 55 FR 18781 (May 4, 1990) (SR-NASD-88-23). The PORTAL Rules
were subsequently amended. See Securities Exchange Act Release Nos.
28678 (December 6, 1990), 55 FR 51194 (December 12, 1990) (SR-NASD-
90-50); 33326 (December 13, 1993), 58 FR 66388 (December 20, 1993)
(SR-NASD-91-5); 34562 (August 19, 1994), 59 FR 44210 (August 26,
1994) (SR-NASD-94-39); 35083 (December 12, 1994), 59 FR 65104
(December 16, 1994) (SR-NASD-94-65); 40424 (September 10, 1998), 63
FR 49623 (September 16, 1998) (SR-NASD-98-68); 43873 (January 23,
2001), 66 FR 8131 (January 29, 2001) (SR-NASD-99-65); 44042 (March
6, 2001), 66 FR 14969 (March 14, 2001) (SR-NASD-99-66).
\9\ See Securities Act Release No. 6862 (April 23, 1990), 55 FR
17933 (April 30, 1990).
\10\ 17 CFR 230.144A.
---------------------------------------------------------------------------
The PORTAL Market did not develop as anticipated. The Exchange
believes this is, in part, because PORTAL securities could only be
traded in the PORTAL Market and the original PORTAL rules imposed trade
reporting for all transactions in PORTAL securities at a time when
there were no trade reporting requirements for privately-placed
securities.\11\ In addition, Nasdaq believes PORTAL did not develop
because it required use of cumbersome technology for access to the
PORTAL Market computer system for reporting purposes, which was a
stand-alone computer system.
---------------------------------------------------------------------------
\11\ Currently, NASD Rule 6732 requires that transactions in
PORTAL equity securities be reported to the OTC Reporting Facility
and PORTAL debt securities be reported to the Trade Reporting and
Compliance Engine Service (``TRACE'').
---------------------------------------------------------------------------
After nearly a decade, NASD filed a proposed rule change to delete
many features of the PORTAL Market that had become obsolete including
rules governing the registration of PORTAL Dealers, PORTAL Brokers, and
PORTAL Qualified Investors and rules that were intended to regulate the
quotation and
[[Page 44197]]
trade reporting of PORTAL securities between PORTAL participants using
the PORTAL system.\12\ Following approval of this proposed rule change,
Nasdaq's primary role in the PORTAL Market became designating
securities as PORTAL eligible \13\ which made those securities eligible
for book entry services at The Depository Trust Company (``DTC'').\14\
---------------------------------------------------------------------------
\12\ See Securities Exchange Act Release No. 44042 (March 6,
2001), 66 FR 14969 (March 14, 2001) (order approving SR-NASD-99-66).
In this order, the Commission also approved rules replacing NASD's
trade reporting requirements with a requirement that NASD members
submit trade reports of secondary market transactions in PORTAL-
designated equity securities through the Automated Confirmation
Transaction Service (now know as the OTC Reporting Facility) and in
PORTAL U.S. high-yield debt securities through TRACE.
\13\ Nasdaq staff historically had responsibility for review of
PORTAL Market applications to determine the eligibility of
securities and of PORTAL Participants (including broker-dealers and
investors). Upon the separation of Nasdaq from the NASD and the
approval of Nasdaq as a registered national securities exchange
under Section 6 of the Act, the review functions for PORTAL Market
eligibility were retained by Nasdaq, and the PORTAL Market rules in
the NASD Rule 5300 Series became the Nasdaq Rule 6500 Series. See
Securities Exchange Act Release No. 53128 (January 13, 2006), 71 FR
3550 (January 23, 2006).
\14\ Securities Exchange Act Release No. 33327 (December 13,
1993), 58 FR 67878 (December 22, 1993) (order approving a proposed
rule change that authorized DTC to make securities sold pursuant to
Rule 144A depository eligible provided that such securities are
designated for inclusion in a system of a self-regulatory
organization (``SRO'') approved by the Commission for the reporting
of quotation and trade information on Rule 144A transactions).
---------------------------------------------------------------------------
Nasdaq's PORTAL Proposal
Nasdaq has proposed an updated version of the PORTAL Market, which
would operate as a facility of the Exchange.\15\ The proposed
amendments to the PORTAL rules would: (i) Establish qualification
requirements for brokers and dealers that are Nasdaq members, and QIBs
\16\ that wish to have access to PORTAL; and (ii) implement quotation,
trade negotiation, and trade reporting functions in the PORTAL Market
for PORTAL-designated securities. Many of the rules proposed by Nasdaq
are substantially the same as those approved by the Commission when the
PORTAL Market was first implemented by NASD in 1990.\17\ The proposed
PORTAL Market, described in detail in the Notice, is summarized below.
---------------------------------------------------------------------------
\15\ Because the PORTAL Market is a facility of Nasdaq, trades
done on the PORTAL Market could be considered trades done on a
national securities exchange and thus would be subject to Section
12(a) of the Exchange Act. This section provides that it ``shall be
unlawful for any member, broker or dealer to effect any transaction
in any security (other than an exempted security) on a national
securities exchange unless a registration is effective as to such
security.'' 15 U.S.C. 78l(a). Section 12(b) of the Act provides all
equity and debt securities must be registered before such securities
may be traded on a national securities exchange, unless they are
``exempted securities'' or are otherwise exempt from Exchange Act
registration requirements. In order to trade unregistered 144A
securities on the PORTAL Market, Nasdaq requested, and the
Commission provided, exemptive relief pursuant to Section 36 of the
Exchange Act from Section 12(a) of the Exchange Act to permit Nasdaq
members to trade PORTAL-designated securities that are not
registered under Section 12(b) of the Exchange Act. See note 55,
infra.
\16\ The requirements for QIBs are set forth in Rule 144A.
\17\ See note 8, supra.
---------------------------------------------------------------------------
Security Designation: PORTAL designation is limited to those Rule
144A securities that are initially sold to QIBs by a broker-dealer
acting as initial placement agent or initial purchaser. Nasdaq would
continue to qualify ``restricted securities,'' as that term is defined
in SEC Rule 144(a)(3),\18\ and securities that are restricted pursuant
to contract or through the terms of the security, for designation as
PORTAL securities based on, among other things, the requirements for
the resale of a security under Rule 144A(d)(3) and (d)(4).\19\ Nasdaq
would have authority under the PORTAL Rules to suspend or terminate the
designation of a PORTAL security, thus removing the ability to
negotiate trades in the security through PORTAL.
---------------------------------------------------------------------------
\18\ 17 CFR 230.144(a)(3).
\19\ 17 CFR 230.144A(d)(3) and (d)(4). Nasdaq has represented
that in the future, it will consider allowing Regulation D
securities to participate in PORTAL so long as PORTAL Market
Information would continue to be available only to PORTAL
Participants. See Response to Comments, infra note 29, at 3.
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Broker-Dealer Access: Nasdaq members that meet the PORTAL
qualification requirements would be designated as ``PORTAL Dealers,''
who could trade as principal, and ``PORTAL Brokers,'' who would act as
agent for customers. PORTAL Dealers and PORTAL Brokers would be
permitted to post anonymous one- or two-sided indicative quotations in
PORTAL securities. In addition, PORTAL Dealers and PORTAL Brokers would
be permitted to negotiate anonymously and execute trades in PORTAL
securities.
QIB Access: An institution that executes a subscriber agreement,
agrees to comply with the PORTAL rules and meets the $100 million and
other standards in Rule 144A to be a QIB would be qualified by Nasdaq
as a ``PORTAL Qualified Investor.'' PORTAL Qualified Investors would be
permitted to access the PORTAL Market through a password protected
linkage and view quotations of PORTAL Dealers and PORTAL Brokers, and
confirm transactions when the PORTAL Qualified Investor uses a PORTAL
Dealer or PORTAL Broker to execute a trade in PORTAL. PORTAL Qualified
Investors would not be permitted to enter quotations in the PORTAL
system or enter orders directly into PORTAL.
Trade Negotiation/Execution: PORTAL has electronic negotiation
features that allow PORTAL Dealers and PORTAL Brokers to negotiate both
openly and anonymously and execute trades in PORTAL securities. All
quotes in PORTAL would be indicative. PORTAL Qualified Investors would
not be permitted to participate in negotiations. Once an anonymous
trade was negotiated in PORTAL, the identity of the counter-parties
would be revealed to each other for purposes of comparison,
confirmation, and settlement of the trade.
Trade Reporting: Trade reports in reportable PORTAL debt and equity
securities pursuant to NASD Rule 6732 would be forwarded by Nasdaq to
TRACE and the OTC Reporting Facility, respectively.
Dissemination of PORTAL Trade Report Information: All trade report
information for trades negotiated via PORTAL would be disseminated in
PORTAL to PORTAL Brokers, PORTAL Dealers, and PORTAL Qualified
Investors (``PORTAL Participants''), but would not include the identity
of the parties and, in the case of PORTAL debt, would not aggregate or
otherwise follow the dissemination protocols applicable to debt trades
reported to TRACE.\20\ PORTAL Participants would be prohibited from
disclosing any PORTAL Market information, including quotations,
transactions, and other information \21\ displayed in the PORTAL Market
(``PORTAL Market Information''), to any party other than another PORTAL
Participant. Nasdaq would not disseminate PORTAL Market Information to
the public.
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\20\ See Notice, 72 FR at 23877. To quote, execute, and view
trade report information on any Rule 144A investment-grade debt
security in PORTAL, the security must be qualified as a PORTAL
security. Trade report information on Rule 144A investment-grade
debt that is not a PORTAL security cannot be viewed in PORTAL.
\21\ ``Other information'' may include information such as which
other PORTAL Participants are in the system, for example.
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Settlement: Trades in equity securities that have been compared and
confirmed will be forwarded automatically to an appropriate subsidiary
of Depository Trust & Clearing Corporation (``DTCC'') for settlement.
Nasdaq also intends, at a future date, to provide the ability to
forward all PORTAL trades in debt securities to an appropriate
subsidiary of DTCC for settlement.
Regulatory Surveillance: NASD currently provides and would continue
[[Page 44198]]
to provide surveillance of the trade reports in PORTAL securities that
are submitted through TRACE and the OTC Reporting Facility. Real-time
surveillance of quoting and trading activity in PORTAL will be
conducted by Nasdaq's MarketWatch Department.
SEC Exemptions: Nasdaq has requested exemptions and no-action
relief so that the PORTAL Market can operate as described in this
filing.\22\ In summary, Nasdaq requested the following exemptions: Rule
15c2-11 under the Act to allow broker-dealers to post quotations in
PORTAL securities without gathering the information required by that
rule; \23\ Section 12(a) \24\ of the Act which requires securities
traded on a national securities exchange to be registered, to permit
Nasdaq members to trade securities that are not registered under
section 12(b) of the Act; \25\ and staff no-action relief from Section
12(g) of the Act \26\ to permit foreign private issuers to continue to
be eligible for the exemption under Rule 12g3-2(b) under the Exchange
Act.\27\
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\22\ In connection with its approval of PORTAL in 1990 (see note
8, supra), the Commission issued similar exemptions. See letter to
Frank J. Wilson, Executive Vice President and General Counsel, NASD
(``Wilson''), from Mary E.T. Beach, Associate Director, Division of
Corporation Finance, Commission, dated January 16, 1990, and letter
to Wilson from Jonathan G. Katz, Secretary, Commission, dated April
27, 1990.
\23\ 17 CFR 240.15c2-11. See letter from Thomas P. Moran,
Associate General Counsel, Nasdaq, to James A. Brigagliano,
Assistant Director, Division of Market Regulation, Commission, dated
June 28, 2007.
\24\ 15 U.S.C. 78l(a).
\25\ 15 U.S.C. 78l(a) and 15 U.S.C. 78l(b). See letter to Nancy
M. Morris, Secretary, Commission, from Thomas P. Moran, Associate
General Counsel, Nasdaq, dated June 28, 2007.
\26\ 15 U.S.C. 78l(g).
\27\ 17 CFR 240.12g3-2(b). See letter to Paul Dudek, Chief
Counsel, Division of Corporation Finance, Commission, from Thomas P.
Moran, Associate General Counsel, Nasdaq, dated July 24, 2007.
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III. Comments
Seven comment letters were received on the proposal. The letters
from NYPPEX, TechNet, and the Council on Competitiveness expressed
general support for the proposal.\28\ The letters from SIFMA and FBR
raised questions and issues discussed below. Nasdaq responded to those
comments.\29\
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\28\ Mr. McGuire submitted a one-line, non-substantive e-mail
regarding the proposal.
\29\ See letters to Nancy M. Morris, Secretary, Commission, from
Thomas P. Moran, Associate General Counsel, Nasdaq, dated June 28,
2007 and July 23, 2007 (``Response to Comments'').
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A. SIFMA
In its comment letter, SIFMA sought clarification on numerous
points, including: trade reporting (the scope of information that would
be reported, who would be responsible for submitting the information,
and the timing of submission); the information that would be
disseminated to PORTAL Participants; the role of third-party vendors in
the dissemination of PORTAL Market Information; the extent to which
PORTAL Qualified Investors would have direct access to the trading and
negotiation functionality of PORTAL; and the rationale for limiting
order size. In its Response to Comments, Nasdaq provided further
explanation and details regarding these points.\30\
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\30\ See Response to Comments, supra note 29, at 2-4 and 7-8.
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SIFMA expressed concern regarding dissemination of PORTAL Market
Information. SIFMA requested that Nasdaq consider whether dissemination
of any trade information regarding PORTAL securities is necessary or
beneficial and whether such dissemination would negatively affect
liquidity and the willingness of investors to commit capital in
unregistered securities. Nasdaq responded, in part, that it believes
dissemination of information to PORTAL Participants is likely to
increase their ability to make better informed decisions, thereby
increasing confidence and liquidity in the market for 144A securities.
SIFMA also suggested that if trade report information is to be
disseminated to PORTAL Participants, dissemination should follow
protocols currently applicable to trade report information provided to
TRACE \31\ and the OTC Reporting Facility to avoid immediately exposing
``trading patterns and intentions of market participants.'' Nasdaq
responded that it disagrees and does not believe dissemination of
transaction information should be restricted based on limits or time
periods applicable to TRACE or the OTC Reporting Facility, because
participation in PORTAL is voluntary, and PORTAL Participants know that
their trades will be immediately disseminated to other PORTAL
Participants and, if required, reported for regulatory purposes.\32\
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\31\ SIFMA states that TRACE provides that the volumes for
investment grade securities are capped at five million, and volumes
for non-investment grade securities are capped at one million.
TRACE does not provide information on mortgage- or asset-backed
securities or collateralized mortgage obligations. See NASD Rule
6710. NASD Rule 6230 requires that trades be reported with 15
minutes.
\32\ Nasdaq stated that it is willing to consider modifying the
dissemination parameters of PORTAL debt trades in the system to
follow current TRACE standards where the quantity for individual
debt trades disseminated is capped at five million for investment-
grade securities, and one million for non-investment grade
securities. See Response to Comments, supra note 29, at 3.
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SIFMA also raised concerns with respect to regulatory jurisdiction.
First, SIFMA encouraged Nasdaq, the NASD, and the SEC to work together
with respect to PORTAL to avoid overlapping and potentially
inconsistent regulation. Nasdaq stated it agrees that regulatory
inconsistencies should be avoided where possible, and noted that the
proposal is not expected to materially increase any such burdens.
Next, SIFMA took issue with the requirement that access to the
system as a PORTAL Broker or PORTAL Dealer is limited to Nasdaq members
and sought clarification of Nasdaq's scope of authority over PORTAL
Qualified Investors under proposed Rule 6513 (Compliance with Rules and
Registration Requirements). Nasdaq noted that since PORTAL is a trading
facility of the Nasdaq exchange, execution access to its system must be
limited to Nasdaq members registered as PORTAL Brokers and PORTAL
Dealers. Nasdaq has limited authority over non-members.
With regard to SIFMA's request for clarification regarding the
appropriate scope of Nasdaq's authority over PORTAL Qualified
Investors, Nasdaq acknowledged that its regulatory authority over those
participating in PORTAL is limited to PORTAL Brokers and PORTAL
Dealers, as these would be the only PORTAL Participants that are
required to be Nasdaq members and thus subject to Nasdaq's regulatory
jurisdiction. Nasdaq stated that it had included PORTAL Qualified
Investors in the rule in error. In Amendment No. 4, Nasdaq amended Rule
6513 to reflect that Nasdaq's authority to discipline a participant for
failure to comply with any of the rules or requirements applicable to
the PORTAL Market extends only to PORTAL Brokers and PORTAL Dealers.
Nasdaq does not have authority to discipline PORTAL Qualified Investors
that are not Nasdaq members. It can enforce, however, the PORTAL rules
through its ability to approve, deny, suspend or terminate the
registration of an investor as a PORTAL Qualified Investor.\33\
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\33\ See Proposed Rule 6506(c).
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Finally, SIFMA argued that the subscriber and related agreements
should be included in the proposal. Nasdaq stated that the SEC does not
routinely require commercial agreements of an SRO to be filed, and
Nasdaq believes that nothing in the present proposal should require
inclusion of these agreements. SIFMA commented that Nasdaq should make
its exemptive requests public so that its members may review the legal
analysis
[[Page 44199]]
and policy basis for those requests. Nasdaq declined and noted that it
is not the general practice of the SEC to seek public comment on
exemptions, and Nasdaq does not believe that the Commission needs to do
so for this proposal.
B. FBR
FBR's comments focused on three areas: The PORTAL Qualified
Investor concept; accredited investors; and depository eligibility.
First, FBR argues that limiting participation in the PORTAL Market
to PORTAL Qualified Investors, and limiting access to PORTAL Market
Information to those participants, will create a hidden market. FBR
believes that PORTAL Brokers and PORTAL Dealers should be permitted to
share PORTAL Market Information with anyone who is eligible to sell
restricted shares pursuant to Rule 144A, including Accredited Investors
and all QIBs. FBR states that its inability to share PORTAL Market
Information with its customers is in conflict with its obligations
under the securities laws and rules and NASD Rules, to treat customers,
who are qualified to buy and sell under Rule 144A, fairly.
Nasdaq responds that nothing in its proposal prevents FBR from
sharing PORTAL Market Information with its QIB customers so long as
those customers are qualified as PORTAL Qualified Investors by Nasdaq.
Nasdaq states that the limitation exists to ensure that Nasdaq has
reasonable procedures to prevent pricing information from reaching non-
QIBs, given that it is an SRO responsible for enforcing its rules.
Further, Nasdaq notes that the dissemination by PORTAL Dealers and
PORTAL Brokers of PORTAL Market quotations and last sale report
information of other PORTAL Dealers and PORTAL Brokers to investors not
qualified by Nasdaq could constitute a prohibited general solicitation
under Rule 144A.
Nasdaq does, however, agree that restrictions on dissemination of
PORTAL Market Information could prohibit a PORTAL Dealer from sharing
its own quote in a PORTAL security with its own customers.\34\ Nasdaq
stated it would consider how to modify the rules before PORTAL is
operational so that restrictions on transmission of PORTAL information
do not apply to a PORTAL Dealer's provision of its proprietary quote
information to an established customer of that dealer,\35\ however, FBR
argues that this is not an acceptable modification because it could
result in a situation in which a PORTAL Broker or PORTAL Dealer is
permitted to disclose to its customers certain prices that are
available but are not the best price if the PORTAL Broker or PORTAL
Dealer is not itself quoting at the best price. Further, FBR notes, the
modification would not permit disclosure of last sale information. FBR
believes that such a result would not be in the best interest of
investors and could violate a broker-dealer's duty of fair dealing and
subject them to liability under Rule 10b-5 under the Exchange Act.
---------------------------------------------------------------------------
\34\ See Response to Comments, supra note 29, at 10.
\35\ Id. Any such change must be filed as a proposed rule change
with the Commission.
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FBR also believes that Nasdaq's proposed requirement that QIBs be
approved by Nasdaq in order to have access to PORTAL Market Information
is a departure from the PORTAL Rules that were approved by the
Commission when the PORTAL Market was first established.\36\ Nasdaq
notes that PORTAL will operate under uniform, explicit standards
governing access and information receipt, and a QIB would incur only
modest costs to become a PORTAL Qualified Investor if it wants access
to PORTAL Market Information. Further, Nasdaq points out that the
original PORTAL Market was intended to be an entirely ``closed''
system. Investors were only permitted to execute a transaction in a
PORTAL security if the investor registered as a PORTAL Qualified
Investor and then executed the transaction through a PORTAL Dealer or
PORTAL Broker through the PORTAL system. Therefore, Nasdaq argues,
there was no need in the original PORTAL system to restrict the
dissemination of PORTAL Market Information outside of the PORTAL
Market.
---------------------------------------------------------------------------
\36\ See note 6, supra.
---------------------------------------------------------------------------
Finally, FBR argues that depository eligibility of a security
should not be premised on PORTAL eligibility. FBR argues that DTC's
rule requiring Rule 144A securities to be included in an SRO system for
the reporting of quotation and trade information of resale
transactions, in order for those securities to be eligible for DTC's
depository services is unnecessary and could impede competition between
Nasdaq and alternative trading systems (``ATSs''). Currently, PORTAL is
the only facility that satisfies the eligibility standard. Nasdaq
disagrees and points out that nothing in DTC's rules would preclude
another SRO from establishing and operating a system for quoting,
trading, and reporting Rule 144A securities and thereby be eligible to
obtain DTC's depository services on behalf of such securities.
IV. Discussion and Commission Findings
A. Sections 6 and 11A(a)(1) of the Act
After careful consideration of the proposal, the comment letters,
and Nasdaq's Response to Comments, the Commission finds that the
proposed rule change is consistent with the provisions of section 6 of
the Act,\37\ in general and with section 6(b)(5) of the Act,\38\ in
particular, in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to a free and open market
and a national market system, and, in general, to protect investors and
the public interest. The PORTAL Market will facilitate the trading of
Rule 144A securities and will provide a centralized system for the
display of interest in Rule 144A securities. Rule 144A(d) conditions
the exemption from registration of securities pursuant to Section 5 of
the Securities Act \39\ on offering and selling the securities only to
QIBs. Consequently, Nasdaq structured the PORTAL Market as a closed
system for trading of Rule 144A securities among QIBs. Nasdaq has
implemented procedures to qualify QIBs under its rules. In light of
Nasdaq's procedures as described in the proposed rule change, PORTAL
Participants may rely on Nasdaq's procedures for establishing a
reasonable belief that a prospective purchaser is a QIB.\40\
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\37\ 15 U.S.C. 78f.
\38\ 15 U.S.C. 78f(b)(5).
\39\ 15 U.S.C. 77e.
\40\ If all the conditions in Rule 144A(d) are not met,
transactions in restricted securities may be deemed distributions
and persons offering or selling such securities may be deemed
underwriters within the meaning of Sections 2(a)(11) and 4(1) of the
Securities Act or a participant in a distribution of securities with
the meaning of Section 4(3)(C) of the Securities Act. See discussion
at nn. 9-13, supra.
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In addition, the Commission believes that the proposed rule change
is consistent with the goals of section 11A(a)(1) of the Act.\41\
Section 11A(a)(1) articulates the Congressional findings and policy
goals and objectives respecting the development of a national market
system. Essentially, Congress found that new data processing and
communication techniques should be applied to improve the efficiency of
market operations, broaden the distribution of market information,
enhance opportunities to achieve best execution
[[Page 44200]]
and promote competition among market participants. That provision
stresses the importance of implementing communication enhancements that
will advance the efficiency and effectiveness of a securities market in
servicing the needs of investors. The Commission believes that the
changes to the PORTAL Market contained in this proposed rule change
should provide these benefits and help to enhance the efficiency of the
market for Rule 144A-eligible securities.
---------------------------------------------------------------------------
\41\ 15 U.S.C. 78k-1(a)(1).
---------------------------------------------------------------------------
B. Rule 144A Under the Securities Act
Because Nasdaq has designed the amendments to the PORTAL Market to
facilitate compliance with Rule 144A, section 6(b)(1) of the Act \42\
also requires a determination as to whether it is reasonably designed
to accomplish this purpose.\43\ The Commission believes that the PORTAL
system is designed so that participants who comply with its
requirements will also be in compliance with the requirements of Rule
144A, assuming they also provide information upon request in compliance
with Rule 144A(d)(4).
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\42\ 15 U.S.C. 78f(b)(1).
\43\ Section 6(b)(1) of the Act requires that Nasdaq, as a
national securities exchange, be so organized and have the capacity
to enforce compliance with, among other things, the federal
securities laws. See 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------
Rule 144A is available only to institutional investors meeting the
definition of QIB in Rule 144A(a)(1). A seller is required to form a
reasonable belief that a purchaser is a QIB as the term is defined in
Rule 144A(a)(1). With the exception of broker-dealers, a QIB is
required to, in the aggregate, own and invest on a discretionary basis
at least $100 million in securities of non-affiliated issuers. The
proposed amendments to the PORTAL rules require that any investor
applying to qualify as a PORTAL Qualified Investor meet the Rule 144A
standards for QIBs.
Rule 144A(d)(2) requires that the seller of 144A securities take
reasonable steps to ensure that the purchaser is aware that the seller
may rely on Rule 144A. To meet this requirement of Rule 144A, the
proposed amendments to the PORTAL rules also provide in the designation
requirements for PORTAL Qualified Investors that applicants sign an
undertaking in a subscriber agreement that states that they are aware
that they may purchase a PORTAL security from another QIB who may rely
on an exemption from the provisions of section 5 of the Securities Act
\44\ pursuant to Rule 144A.
---------------------------------------------------------------------------
\44\ 15 U.S.C. 77(e).
---------------------------------------------------------------------------
The PORTAL rules also have eligibility requirements for admitting
securities into PORTAL that parallel the Rule 144A eligibility
requirements for securities. The PORTAL rules require that the security
be eligible to be sold pursuant to Rule 144A under the Securities Act.
The application for designation of a PORTAL security requires the
submission of specific information to Nasdaq necessary to support the
applicant's claim that the security meets the requirements of Rule
144A.
Furthermore, Rule 144A conditions the availability of the exemption
on certain information being available to holders and prospective
purchasers. Rule 144A(d)(4) provides that, with respect to securities
of an issuer that is not subject to section 13 of the Act,\45\ section
15(d) of the Act,\46\ exempt from reporting pursuant to Rule 12g3-2(b)
under the Act,\47\ or a foreign government eligible to register
securities under Schedule B of the Securities Act, the holder and a
prospective purchaser designated by the holder must have the right to
obtain from the issuer, upon request of the holder, and the purchaser
must have received at or prior to the time of sale, upon such
purchaser's request to the holder, certain information about the
issuer. Nasdaq has designed PORTAL to comply with this aspect of Rule
144A because the PORTAL rules currently require that a security meet
these Rule 144A requirements and that the issuer undertake to provide
the information required by Rule 144A(d)(4) where applicable.
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\45\ 15 U.S.C. 78m.
\46\ 15 U.S.C. 78o(d).
\47\ 17 CFR 240.12g3-2(b).
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PORTAL is designed to be a trading market in restricted securities
limited to highly sophisticated investors. In adopting Rule 144A, the
Commission noted that ``[t]he transactions covered by the safe harbor
are private transactions'' that do not require the protections of
section 5 of the Securities Act.\48\ The Commission believes that broad
dissemination of trading information in this limited context is not
desirable. Nasdaq's restricting the information to PORTAL Qualified
Investors to allow Nasdaq to prevent PORTAL Market Information from
reaching non-QIBs in this context is reasonable.
---------------------------------------------------------------------------
\48\ See note 9, supra.
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In addition to designing the PORTAL rules to facilitate compliance
with the requirements of Rule 144A, the proposed rule change would
structure PORTAL to limit the possibility that restricted securities
enter the U.S. retail market by requiring that PORTAL-designated
securities be assigned a CUSIP \49\ number that is different than the
CUSIP number assigned to any securities of the same class that do not
satisfy the eligibility requirements for PORTAL securities. The
security explanation protocol employed by Standard & Poor's related to
the CUSIP number assigned to PORTAL securities specifically
distinguishes those securities from all other publicly-traded and
restricted securities by using the words ``Rule 144A'' and ``PORTAL.''
For these reasons, the Commission believes that PORTAL, as proposed, is
reasonably designed to facilitate compliance with Rule 144A, so long as
there is compliance with the PORTAL rules and procedures.\50\
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\49\ Committee on Uniform Securities Identification Procedures.
\50\ The Commission notes that information shall still be
provided on request, regardless of the exemption for PORTAL
securities, as applicable, pursuant to Rule 144A(d)(4). Further,
Rule 6502 authorizes Nasdaq to suspend or terminate a security's
PORTAL designation if a holder or prospective purchaser did not
receive information as required by Rule 144A(d)(4).
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C. Exemptions and No-Action Relief Requests
The Commission has granted Nasdaq exemptions from Rule 15c2-11
under the Act \51\ to allow brokers and dealers to post quotations in
PORTAL securities without first gathering information required by that
rule \52\ and Section 12(a) \53\ of the Act to permit trading of
securities not registered under section 12(b) \54\ of the Act; \55\ and
the staff has granted no-action relief with respect to section 12(g)
\56\ of the Act to permit foreign private issuers to continue to be
eligible for the exemption under Rule 12g3-2(b) \57\ of the Act.\58\
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\51\ 17 CFR 240.15c2-11.
\52\ See letter from James A. Brigagliano, Associate Director,
Division of Market Regulation, Commission, to Thomas P. Moran,
Associate General Counsel, Nasdaq, dated July 31, 2007.
\53\ 15 U.S.C. 78l(a).
\54\ 15 U.S.C. 78l(b).
\55\ See Securities Exchange Act Release No. 56176, (July 31,
2007), Order Granting The NASDAQ Stock Market, LLC's Application for
an Exemption Pursuant to Section 36 of the Securities Exchange Act
of 1934 (``Exemption Order'').
\56\ 15 U.S.C. 78l(g).
\57\ 17 CFR 240.12g3-2(b).
\58\ See letter from Paul Dudek, Chief, Office of International
Corporate Finance, Division of Corporation Finance, Commission, to
Thomas P. Moran, Associate General Counsel, Nasdaq, dated July 31,
2007.
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D. Impact on Competition, Efficiency and Capital Formation
Section 3(f) of the Act requires that the Commission consider
whether Nasdaq's proposal will promote efficiency, competition, and
capital
[[Page 44201]]
formation.\59\ The Commission has considered the merits of the issues
raised by each of the commenters and has concluded that the PORTAL
rules, as proposed, are consistent with the Act.
---------------------------------------------------------------------------
\59\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------
The Commission notes that in its response to comments, Nasdaq
provided SIFMA with additional information regarding the operation of
the PORTAL Market and believes Nasdaq sufficiently responded to SIFMA's
comments. The Commission agrees with Nasdaq, in particular, that the
prompt and complete dissemination of PORTAL Market Information to
PORTAL Participants should allow PORTAL Participants to better evaluate
their decisions regarding trading in the PORTAL Market and should
result in increased investor confidence and liquidity in the PORTAL
Market. The Commission also notes that if a PORTAL Participant does not
want its trade information disseminated to other PORTAL Participants,
there is no requirement that the Participant utilize Nasdaq's system
for effecting its trade; use of the PORTAL Market is voluntary.
Furthermore, the Commission agrees that Nasdaq need not make the
subscriber and related agreements part of this proposal, nor does
Nasdaq need to make its exemption requests public.
The Commission does not believe that Nasdaq's proposal is anti-
competitive because of the eligibility standard in DTC's rules. Nasdaq
does not have any authority with respect to DTC's rules. DTC's rules
provide that DTC is authorized to make 144A securities eligible for
deposit, book-entry delivery, and other depository services, provided
that any such Rule 144A securities are designated for inclusion in a
system of an SRO approved by the Commission for the reporting of
quotation and trade information of Rule 144A transactions.\60\ In
approving the proposed rule change establishing the DTC eligibility
requirement that Rule 144A securities must be included in an SRO Rule
144A System, such as the PORTAL Market, the Commission noted a crucial
feature of any such system would be a requirement that the SRO's
members report trades involving securities using the system on a
routine basis to the SRO, along with information that will facilitate
detection of securities law violations.\61\
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\60\ See Securities Exchange Act Release No. 33327 (December 13,
1993); 58 FR 57878 (December 22, 1993) (SR-DTC-90-06).
\61\ Given the evolution in the market for these securities
since DTC's rule was adopted, the Commission believes it would be
reasonable for DTC to review this requirement.
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The Commission believes that re-establishing the PORTAL Market as a
quoting and trading system is a reasonable effort by Nasdaq to enhance
the quality of the Rule 144A market by providing a centralized market
and information to QIBs, promoting greater efficiency in executions,
and increasing overall market transparency. While the PORTAL Market
will provide a system for quoting and trading Rule 144A securities, it
does not represent an exclusive means for selling or purchasing Rule
144A securities, nor does it prevent broker-dealers from seeking
alternative trading venues for such transactions.
V. Conclusion
It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\62\ that the proposed rule change (SR-NASDAQ-2006-065), as
amended, be, and hereby is, approved.
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\62\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\63\
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\63\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-15288 Filed 8-6-07; 8:45 am]
BILLING CODE 8010-01-P
