94-13344. Self-Regulatory Organizations; Order Approving and Notice of Filing and Order Granting Accelerated Approval of Amendment No. 1 to a Proposed Rule Change by the Philadelphia Stock Exchange, Inc., Relating to Enhanced Specialist ...  

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    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-13344]
    
    
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    [Federal Register: June 2, 1994]
    
    
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    SECURITIES AND EXCHANGE COMMISSION
    [Release No. 34-34109; File No. SR-Phlx-93-29]
    
     
    
    Self-Regulatory Organizations; Order Approving and Notice of 
    Filing and Order Granting Accelerated Approval of Amendment No. 1 to a 
    Proposed Rule Change by the Philadelphia Stock Exchange, Inc., Relating 
    to Enhanced Specialist Participation in Parity Options Trades.
    
    May 25, 1994.
        On August 9, 1993, the Philadelphia Stock Exchange, Inc. (``Phlx'' 
    or ``Exchange'') filed with the Securities and Exchange Commission 
    (``Commission''), pursuant to section 19(b)(1) of the Securities 
    Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a 
    proposed rule change relating to enhanced specialist participation in 
    parity options trades. Notice of the proposal appeared in the Federal 
    Register on September 20, 1993.\3\ One comment letter was received 
    opposing the proposed rule change,\4\ to which the Phlx responded.\5\ 
    On April 19, 1994, the Exchange filed Amendment No. 1.\6\ This order 
    approves the Exchange's proposal, as amended.
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        \1\15 U.S.C. 78s(b)(1) (1988).
        \2\17 CFR 240.19b-4 (1992).
        \3\See Securities Exchange Act Release No. 32891 (September 14, 
    1993), 58 FR 48921.
        \4\See Letter from Jay Mizrahi, General Partner, P.J. Shoreline 
    Securities (``Shoreline''), to Jonathan Katz, Secretary, Commission, 
    dated December 16, 1993 (``Shoreline Securities Letter'').
        \5\See Letter from William Uchimoto, Vice President and General 
    Counsel, Phlx, to Sharon Lawson, Assistant Director, Office of 
    Derivatives and Equity Oversight (``ODEO''), Division of Market 
    Regulation (``Division''), Commission, dated February 23, 1994 
    (``Phlx Response Letter'').
        \6\On April 19, 1994, the Exchange filed Amendment No. 1 to the 
    proposed rule change to specify that: (1) The Exchange's Allocation, 
    Evaluation and Securities Committee (``Committee'') may only extend 
    the proposed six month Enhanced Parity Split (as defined herein) for 
    one additional six month period; and (2) the Enhanced Parity Split 
    cannot cause a customer order to receive a smaller participation as 
    a result of this rule than any other crowd participant, including 
    the specialist. Further, Amendment No. 1 clarifies that (1) a ``New 
    Unit'' would be any new equity options specialist unit approved by 
    the Exchange on or after June 16, 1993; (2) a `New Options Class'' 
    is any class of options listed for trading by the Exchange on or 
    after June 16, 1993; and (3) the Enhanced Parity Split may be 
    granted for a New Options Class after the initial six month period 
    has expired as long as the New Options Class is assigned to the New 
    Unit while it is still entitled to receive the Enhanced Parity Split 
    pursuant to the proposed rule change on the first New Options Class 
    it commenced trading. See Letter from Michele Weisbaum, Associate 
    General Counsel, Phlx, to Michael Walinskas, Branch Chief, ODEO, 
    Division, Commission, dated April 19, 1994 (``Amendment No. 1'').
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    Description of Proposal
    
        In order to encourage the registration with the Exchange of New 
    Units,\7\ the Exchange proposes to add now Commentary .17 to Rule 1014. 
    Specifically, the proposal would enable New Units trading New Options 
    Classes,\8\ to execute 50% of the contracts in transactions where the 
    New Unit is on parity with one registered options trader (``ROT''), and 
    40% of the contracts in a transaction where the New Unit is on parity 
    with two or more ROTs (``Enhanced Parity Split''); provided, however, 
    that no customer order which is on parity may receive a smaller 
    participation than any other crowd participant, including the 
    specialist.\9\
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        \7\See Amendment No. 1, supra note 6.
        \8\id.
        \9\In such cases, the specialist may waive the Enhanced Parity 
    Split. Telephone conversation between Michele Weisbaum, Associate 
    General Counsel, Phlx, and Brad Ritter, Attorney, ODEO, Division, 
    Commission, on May 20, 1994.
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        A New Unit can be formed by current ROTs and/or specialists as long 
    as a new broker-dealer firm is established. Because the proposal will 
    be limited to New Options Classes, options classes that are leased or 
    otherwise transferred from an existing specialist to a New Unit, or 
    that were listed on the Exchange prior to June 16, 1993, and which are 
    assigned to a New Unit, and not covered by the proposed rule.
        The Enhanced Parity Split would be effective for a period of six 
    months from the commencement of trading by the New Unite of its first 
    New Options Class.\10\ Furthermore, the Committee may extend the 
    Enhanced Parity Split for one additional six month period upon petition 
    by the New Unit and a determination by the Committee that such 
    extension is consistent with the promotion of just and equitable 
    principles of trade and the public interest.\11\ The Enhanced Parity 
    Split will also be applicable to any additional New Options Classes 
    that are assigned to a New Unit, provided that at the time such classes 
    are assigned, the New Unit is still entitled to receive the Enhanced 
    Parity Split on the first New Options Class it commenced trading 
    pursuant to this rule.\12\ The Committee may terminate any extension of 
    the Enhanced Parity Split if the Committee determines that such action 
    is consistent with the promotion of just and equitable principles of 
    trade and the public interest.\13\
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        \10\On August 17, 1992, the Exchange filed a similar proposal 
    pursuant to which all specialists would have received the enhanced 
    parity split contained in this proposal. See File No. SR-Phlx-92-19. 
    The Exchange has withdrawn that proposal. See Letter from Keith 
    Kessel, Phlx, to Brad Ritter, Attorney, Office of Derivatives 
    Regulation, Division of Market Regulation, Commission, dated 
    December 2, 1993. On February 28, 1994, the Exchange filed another 
    proposal which provides for a different form of enhanced parity 
    participation for existing specialist units and for New Units that 
    become ineligible for the Enhanced Parity Split pursuant to this 
    proposal. See Securities Exchange Act Release No. 33935 (April 20, 
    1994), 59 FR 22038 (April 28, 1994) (notice of File No. SR-Phlx-94-
    12). If approved, the enhanced parity participation for specialists 
    proposed in File No. SR-Phlx-94-12 would not be available to New 
    Units that are eligible for the Enhanced Parity Split pursuant to 
    this proposal. Telephone conversation between Michele Weisbaum, 
    Associate General Counsel, Phlx, and Brad Ritter, Attorney, ODEO, 
    Division, Commission, on April 20, 1994.
        \11\See Amendment No. 1, supra note 6.
        \12\Once granted, the Enhanced Parity Split on additional New 
    Options Classes assigned to a New Unit may remain in effect for up 
    to one year as provided herein even though the Enhanced Parity Split 
    on the first New Options Class assigned to the New Unit terminates 
    during that time period. Id.
        \13\The Exchange represents that a New Unit will need the 
    initial six month period in order to establish a trading record in 
    the New Options Class. If, however, the New Unit's performance 
    during the initial six month period is substandard, the Committee 
    may reallocate the particular options class to another specialist 
    pursuant to Phlx Rule 511. See Letter from William Uchimoto, General 
    Counsel, Phlx, to Richard Zack, Branch Chief, ODEO, Division, 
    Commission, dated January 5, 1994.
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    Comment Letter
    
        The Comment letter received opposing the proposed rule change made 
    several arguments as to why the proposed rule change is 
    inappropriate.\14\ The commenter first argues that the Exchange has no 
    evidence that granting an Enhanced Parity Split to New Units will in 
    any way benefit Phlx public customers. In fact, the letter argues that 
    the proposed rule is anti-competitive and will ultimately harm public 
    customers by acting as a disincentive for ROTs to make competitive 
    markets, thus removing liquidity from the market. Shoreline believes 
    that price competition is restricted whenever the specialist is granted 
    a benefit not available to the ROTs in the crowd. Shoreline also argues 
    that there is no evidence that the Enhanced Parity Split will encourage 
    New Units to make tight and liquid markets, as the Phlx claims.
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        \14\See Shoreline Securities Letter, supra note 4.
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        The commenter's next argument is that the proposed rule allows, but 
    does not require, the New Unit to invoke the Enhanced Parity Split. 
    Shoreline believes that this further harms ROTs because there may be 
    instances where ROTs are forced to accept a greater percentage of an 
    undesirable trade than they would if the New Unit is required to accept 
    the Enhanced Parity Split.
        Shoreline also argues that by allowing existing specialists and 
    ROTs to form New Units, the proposal does not serve its stated purpose, 
    which is to encourage the formation and registration with the Exchange 
    of new specialist units.
        Finally, the commenter argues that the Phlx has provided no 
    specific criteria for maintaining or revoking the Enhanced Parity Split 
    with respect to a particular New Options Class. Shoreline believes that 
    if the Enhanced Parity Split is to be offered to New Units, the 
    Committee should have objective standards to apply in making a 
    determination of whether to extend the Enhanced Parity Split for the 
    allowed additional six month period.
    
    Phlx Response
    
        The Phlx refutes the arguments raised by Shoreline.\15\ First, the 
    Phlx believes that the proposal will in fact add liquidity to the 
    market, thus directly benefiting public customers. The Phlx believes 
    the proposal will attract new specialist units to the Exchange and will 
    encourage these New Units to make tight markets in New Options Classes 
    in order to attract order flow to the Exchange. The Phlx argues that 
    because every newly listed options class is subject to multiple 
    listings, disincentives are created which discourage specialist units 
    from acting as specialists for those new classes of options. The Phlx 
    believes that the Enhanced parity Split will counteract these 
    disincentives by offering New Units a direct benefit if they are able 
    to attract order flow to the Exchange. The Exchange believes the New 
    Units will be able to attract this order flow, and thus capitalize on 
    the Enhanced Parity Split, only if they maintain tight markets in the 
    New Options Classes. As a result, the Phlx believes that public 
    customers will directly benefit from the proposed rule change.
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        \15\See Phlx Response Letter, supra note 5.
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        The Phlx also disagrees with Shoreline's contention that any 
    enhanced split is anti-competitive. First, the Enhanced Parity Split is 
    available to any market making firm that is willing to establish a New 
    Unit. Secondly, the proposal does not impact parity splits on existing 
    options classes or New Options Classes traded by existing specialist 
    units. Finally, a market maker can always establish priority in a trade 
    by improving the market or by being the first in establishing a market 
    that would otherwise be on parity.
        In response to the commenter's claims that market makers are 
    unfairly disadvantaged by this proposal, the Phlx makes several 
    arguments. First, the Phlx states that the claims that market makers 
    will be hampered in hedging trades where they improve the market does 
    not take into account the possibility that the market maker may be able 
    to hedge by improving both sides of the market or by utilizing another 
    options series for purposes of hedging. Additionally, the proposal does 
    not impact in any manner the ability of a market maker to hedge an 
    options position with underlying stock. Further, the Phlx argues that 
    specialists have responsibilities and are subject to certain costs that 
    market makers do not have, such as, updating and disseminating quotes, 
    reflecting all market interest in the displayed quotes, and the fixed 
    staffing cost committed to market making in a particular issue whether 
    it is active or not. In order to attract specialist units to the 
    Exchange who are willing to accept these responsibilities, the Phlx 
    believes it is necessary to provide specialists with some benefits that 
    are not available to ROTs. The Phlx believes that any negative impact 
    to ROTs that may be caused by this proposal is more than offset by the 
    benefit to the Exchange and its customers of attracting New Units to 
    the Exchange.
        The Phlx also refutes the commenter's claim that ROTs are further 
    harmed because the New Unit is not required to invoke the Enhanced 
    Parity Split. The Phlx argues that because specialists and ROTs both 
    desire to buy at the bid and sell at the ask, there should be few 
    undesirable trades where the specialist would not find it desirable to 
    invoke the Enhanced Parity Split. As a result, the Exchange believes 
    that any negative impact on the ROTs as a result of the permissive 
    nature of the rule will be de minimis.
        Finally, the Phlx argues that because the Enhanced Parity Split can 
    apply to a New Options Class for at most one year, the Exchange does 
    not believe that detailed evaluative criteria for use in awarding or 
    removing the Enhanced Parity Split will be particularly effective or 
    necessary. The Exchange believes that by the time that the New Unit 
    establishes a trading history which can be reviewed and evaluated, the 
    Enhanced Parity Split will probably have lapsed. Even without such 
    criteria, however, the Phlx notes that the Committee has the ability to 
    review the performance of a New Unit and to remove the Enhanced Parity 
    Split at the end of the initial six month period, or in more egregious 
    cases, to reallocate an options class for inadequate specialist 
    performance.
    
    Discussion
    
        The Commission finds that the proposed rule change is consistent 
    with the requirements of the Act and the rules and regulations 
    thereunder applicable to a national securities exchange, and, in 
    particular, the requirements of section 6(b)(5)\16\ in that the 
    proposal is designed to promote just and equitable principles of trade, 
    to remove impediments to and perfect the mechanism of a free and open 
    market, and protect investors and the public interest. Specifically, 
    the Commission finds that the proposal may serve to remove impediments 
    to and perfect the mechanism of a free and open market by encouraging 
    the creation of New Units and by encouraging those New Units to 
    maintain tight markets for New Options Classes in order to attract 
    order flow to the Exchange. The Commission believes the proposed rule 
    change is a reasonable attempt by the PHlx to enhance the ability of 
    New Units to compete for order flow in the environment of multiply-
    traded options classes. In addition, the protection of investors and 
    the public interest is maintained because the Committee can refuse to 
    extend the Enhanced Parity Split for an additional six months if the 
    performance of the New Unit does not warrant an extension. Further, the 
    proposed rule change provides the Enhanced Parity Split cannot 
    disadvantage a public customer order that is on parity with a New 
    Unit.\17\
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        \16\15 U.S.C. 78f(b)(5) (1988).
        \17\See Amendment No. 1, supra note 6.
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        The Commission agrees with the Exchange that in order to attract 
    order flow to the Exchange, the Phlx needs to be able to attract and 
    retain well capitalized specialist units that are willing to trade New 
    Options Classes, as well as existing options classes. Further, the 
    Commission disagrees with the commenter that the proposed rule change 
    will disadvantage public customers. On the contrary, the proposed rule 
    change eliminates any direct injury to public customers by providing 
    that customer orders on parity may not receive a smaller participation 
    than any other crowd participant, including the specialist.\18\ 
    Furthermore, because the proposal may serve to add liquidity to the 
    market by encouraging New Units to maintain tight markets in order to 
    attract order flow to the Exchange, the Commission believes that public 
    customers could benefit from the proposed rule change.\19\ Accordingly, 
    the Commission believes there is no evidence to support a conclusion 
    that the proposed rule change will disadvantage public customers.
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        \18\The specialist may waive the Enhanced Parity Split in these 
    circumstances. See supra note 9.
        \19\The Commission notes that contrary to the commenter's 
    contention, ROTs may in fact benefit from the Enhanced Parity Split 
    if the New Units are successful in attracting order flow to the 
    Exchange.
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        The Commission also acknowledges that specialists have 
    responsibilities that ROTs do not have and that these responsibilities 
    have certain costs associated with them, such as the staff costs 
    associated with continually updating and disseminating quotes. As a 
    result, the Commission believes it is reasonable for the Exchange to 
    grant certain advantages, such as the Enhanced Parity Split, to New 
    Units in order to encourage New Units to register as specialists for 
    New Options Classes. Accordingly, as long as these advantages do not 
    unreasonably restrain competition and do not harm investors, the 
    Commission believes that the granting of such benefits to specialists 
    is within the business judgment of the Exchange. Therefore, even though 
    the proposed rule change could arguably have some negative impact on 
    ROTs, for the reasons stated above, the Commission believes the 
    proposal is consistent with the Act.\20\
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        \20\Further, the Commission disagrees with the commenter that 
    ROTs may be disadvantaged by the fact that New Units are not 
    required to accept the Enhanced Parity Split in those instances 
    where it applies. In those cases where a New Unit determines to 
    waive the Enhanced Parity Split, the Exchange's normal parity rules 
    will apply and the ROTs involved will be no worse off than they 
    would on any other parity trade.
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        Finally, the Commission agrees with the Phlx that the lack of 
    quantifiable standards for the Committee to apply in determining 
    whether to extend the Enhanced Parity Split for an additional six month 
    period does not make the proposal unreasonable. Even if the Phlx 
    proposed such standards, some time period would be necessary in order 
    for the New Unit to establish a trading history in the New Option Class 
    in order for such a review to have any validity. In addition, the 
    Committee still will review the performance of the New Unit in 
    determining whether to extend the Enhanced Parity Split for an 
    additional six months for particular New Options Classes. Because the 
    Enhanced Parity Split can be in effect for at most one year for each 
    New Options Class, the Commission believes that the lack of such 
    standards does not prevent a finding that the proposal is consistent 
    with the Act.
        The Commission finds good cause for approving Amendment No. 1 to 
    the proposed rule change prior to the thirtieth day after the date of 
    publication of notice of filing thereof in the Federal Register. First, 
    Amendment No. 1 limits to one year the maximum time period during which 
    the Enhanced Parity Split can exist with respect to any New Options 
    Class and provides that the proposed rule cannot disadvantage customer 
    orders. The purpose of the Enhanced Parity Split is to encourage New 
    Units to maintain tight spreads in New Options Classes, which is a 
    benefit to investors. The Commission believes that providing such an 
    incentive to specialists is appropriate for New Options Classes for the 
    period during which the market for such options classes is being 
    established as long as safeguards exist to ensure that customers are 
    not harmed. As a result, the Commission believes these amendments 
    accomplish these goals consistent with the Act. Secondly, Amendment No. 
    1 also clarifies certain aspects of the proposed rule change. The 
    Commission believes that these amendments strengthen the proposed rule 
    change by minimizing any confusion that may arise as to the 
    applicability of the rule. As a result, the Commission believes it is 
    consistent with section 6(b)(5) of the Act to approve Amendment No. 1 
    to the Phlx's proposal on an accelerated basis.
        Interested persons are invited to submit written data, views, and 
    arguments concerning Amendment No. 1 to the proposed rule change. 
    Persons making written submissions should file six copies thereof with 
    the Secretary, Securities and Exchange Commission, 450 Fifth Street, 
    NW., Washington, DC 20549. 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 Section, 450 Fifth Street, NW., Washington, DC. Copies of 
    such filing will also be available for inspection and copying at the 
    principal office of the Exchange. All submissions should refer to File 
    No. SR-Phlx-93-29 and should be submitted by June 23, 1994.
        It is therefore ordered, pursuant to section 19(b)(2) of Act,\21\ 
    that the proposed rule change (SR-Phlx-93-29) is hereby approved, as 
    amended.
    
        \21\15 U.S.C. 78s(b)(2) (1988).
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        For the Commission, by the Division of Market Regulation, 
    pursuant to delegated authority.\22\
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        \22\17 CFR 200.30-3(a)(12) (1993).
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    Margaret H. McFarland,
    Deputy Secretary.
    [FR Doc. 94-13344 Filed 6-1-94; 8:45 am]
    BILLING CODE 8010-01-M
    
    
    

Document Information

Published:
06/02/1994
Department:
Securities and Exchange Commission
Entry Type:
Uncategorized Document
Document Number:
94-13344
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: June 2, 1994, Release No. 34-34109, File No. SR-Phlx-93-29