

[Federal Register: November 29, 2006 (Volume 71, Number 229)]
[Notices]               
[Page 69165-69166]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no06-92]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54810; File No. SR-NYSE-2005-90]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Granting Approval of Proposed Rule Change and Amendment No. 1 Thereto 
and Notice of Filing and Order Granting Accelerated Approval to 
Amendment No. 2 Thereto To Allow Certain Institutional Customers To 
Elect Not To Receive Account Statements

 November 22, 2006.
    On December 21, 2005, the New York Stock Exchange, Inc. (now known 
as New York Stock Exchange LLC) (``NYSE'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission''), 
pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934 
(``Exchange Act'' or ``Act''),\2\ and Rule 19b-4 thereunder,\3\ a 
proposed amendment to NYSE Rule 409 (Statements of Accounts to 
Customers). On March 28, 2006, the NYSE filed Amendment No. 1 to the 
proposed rule change.\4\ The proposed rule change, as amended by 
Amendment No. 1, was published for comment in the Federal Register on 
May 25, 2006.\5\ The Commission received two comments on the 
proposal.\6\ On August 14, 2006, the NYSE filed Amendment No. 2 to the 
proposed rule change.\7\ This order approves the proposed rule change, 
as amended by Amendment No. 1. Simultaneously, the Commission is 
providing notice of filing of Amendment No. 2 and granting accelerated 
approval of Amendment No. 2.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a et seq.
    \3\ 17 CFR 240.19b-4.
    \4\ In Amendment No. 1, the NYSE proposed to partially amend the 
text of proposed amended Rule 409.
    \5\ See Exchange Act Release No. 53826 (May 18, 2006), 71 FR 
30211 (May 25, 2006).
    \6\ See letter from Tom DiSpaldo, Compliance Officer, BNP 
Paribas Securities Corporation, to Nancy M. Morris, Secretary, 
Commission, dated June 12, 2006 (``BNP letter'') (available for 
review on the Commission's Web site at http://www.sec.gov/comments/sr-nyse-2005-90/tdispaldo7238.htm
); and letter from Noland Cheng, 

Chairman, Operations Committee, Securities Industry Association, to 
Nancy M. Morris, Secretary, Commission, dated June 16, 2006 (``SIA 
letter'') (available for review on the Commission's Web site at 
http://www.sec.gov/comments/sr-nyse-2005-90/sia061606.pdf).

    \7\ In Amendment No. 2, the NYSE proposed to partially amend the 
text of proposed amended Rule 409 as discussed in Section III below.
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I. Description

    The proposed amendment to NYSE Rule 409 would allow institutional 
customers conducting a Delivery versus Payment and Receive versus 
Payment (``DVP/RVP'') business to elect not to receive quarterly 
account statements. Rule 409, in pertinent part, specifies the 
obligations of member organizations with respect to customer 
statements, including frequency of delivery and elements of content.
    NYSE Rule 409(a) requires that, except with the permission of the 
Exchange, members and member organizations shall send statements at 
least quarterly to customers for accounts showing security and money 
positions and entries during the preceding quarter. The proposed 
amendment would provide relief from this requirement for customer 
accounts that are carried solely for the purpose of DVP/RVP 
transactions. A DVP/RVP account is an arrangement whereby delivery of 
securities sold is made to the buying customer's bank in exchange for 
payment, usually in cash, at settlement. Such accounts must comply with 
the requirements outlined in NYSE Rule 387 (COD Orders).\8\
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    \8\ NYSE Rule 387 sets out specific prerequisites for the 
acceptance of such orders:
    (1) The member or member organization must have previously 
received the name and address of the agent, together with its 
customer number;
    (2) The order must note the payment on delivery or collect on 
delivery nature of the trade;
    (3) The member or member organization must deliver to the 
customer a confirmation in the specified form; and
    (4) The member organization must have obtained an agreement from 
the customer regarding the furnishing of appropriate instructions 
for the settlement of the trade.
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    Due to the nature of DVP/RVP accounts, their statements do not 
generally reflect any cash balance or security position at the end of a 
quarter. Consequently, according to NYSE, DVP/RVP customers (chiefly 
institutional customers) generally rely on confirmations (issued 
pursuant to Rule 10b-10 under the Exchange Act) or trade runs for 
transaction-related information. Such records provide critical 
transactional information (such as security name and price, commission 
or markup, if applicable, trade date, settlement date, etc.) in a 
timely fashion. According to NYSE, institutional investors prefer 
transaction confirms or trade run information to quarterly account 
statements.
    The proposed amendment to NYSE Rule 409 would relieve member 
organizations of the obligation to send quarterly statements to 
customers if: (1) The customer's account is carried solely for the 
purpose of execution on a DVP/RVP basis; (2) all transactions effected 
for the account are done on a DVP/RVP basis in conformity with Rule 
387; (3) the account does not show security or money positions at the 
end of the quarter; (4) the customer consents to the suspension of such 
statements in writing and such consents are maintained by the member 
organization in a manner consistent with Exchange Rule 440 and Rule 
17a-4 under the Exchange Act; \9\ (5) the member organization 
undertakes to provide any particular statement or statements to the 
customer promptly upon request; and (6) the member organization 
undertakes to promptly reinstate the delivery of such statements to the 
customer upon request. The proposed rule change specifies that Rule 409 
does not qualify or condition the obligations of a member organization 
under Rule 15c3-2 under the Exchange Act concerning quarterly notices 
of free credit balances on statements.\10\
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    \9\ Under NYSE Rule 440, NYSE member organizations are, among 
other things, required to make and preserve books and records as 
prescribed by Rule 17a-3 under the Exchange Act. Rule 440 also 
states that the recordkeeping format, medium, and retention period 
must comply with Rule 17a-4 under the Exchange Act. Rule 17a-4 
specifies the manner in which broker-dealers must maintain the 
records created in accordance with Rule 17a-3, and certain other 
records produced by broker-dealers, and the required retention 
periods for these records.
    \10\ Rule 15c3-2 under the Exchange Act requires broker-dealers 
to provide each of their customers for whom a free credit balance is 
carried, not less frequently than once every three months, a written 
statement informing the customer of the amount due to the customer, 
and written notice that the funds are not segregated and may be used 
in the broker-dealer's business operations, and that the funds are 
payable on the customer's demand.
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II. Summary of Comments

    The Commission received two comments on the proposal, both of which 
generally were supportive.\11\ BNP opposed condition number (3) of the 
proposal (i.e., that the account not show security or money positions 
at the end of the quarter). BNP believed that proposed condition (3) 
could, among other things, require members to monitor qualifying 
accounts to ensure that they had no money or positions at the end of 
the quarter. BNP also contended that the condition could be triggered 
as a result of a failed receipt

[[Page 69166]]

or delivery at the end of the quarter. In such case, the customer would 
receive a quarterly statement even though it had consented not to 
receive one. BNP contended that the customer would be confused by such 
statement and the statement would not benefit the customer.\12\
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    \11\ See footnote 6, supra.
    \12\ In its comment, discussed below, SIA does not believe that 
condition (3) should apply to those accounts that show a money or 
position balance at the end of the quarter because of unsettled 
items or a ``DK.''
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    The SIA letter supported the proposed amendment to NYSE Rule 409 
but commented that the proposal would unnecessarily and impractically 
require individual firms to retain a record that reflects each 
institution's consent to the suspension of statements. SIA proposed 
that the NYSE interpret proposed amended Rule 409 to make an 
institution's notification to Omgeo \13\ and Omgeo's population of 
their database sufficient for recordkeeping purposes.
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    \13\ According to SIA, Omgeo, LLC is the leading industry 
provider of institutional processing services. SIA believes that 
other vendors would also provide such indicators.
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III. NYSE's Response to Comments

    In filing Amendment No. 2, NYSE addressed comments on the proposal 
by revising proposed amended Rule 409(a)(3) to confirm that 
transactional positions, such as those arising from a fail to receive 
or deliver money or securities, will not be deemed money or security 
positions for purposes of this rule. This proposed change is intended 
to avoid the possibility raised by BNP that firms could be in violation 
of the rule due to a failed receipt or delivery at the end of a 
quarter.

IV. Discussion

    The Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of the Exchange Act and the rules and 
regulations thereunder applicable to a national securities 
exchange.\14\ In particular, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Exchange Act.\15\ 
Section 6(b)(5) of the Act requires, among other things, that the rules 
of an exchange be designed to promote just and equitable principles of 
trade, to remove impediments to and perfect the mechanism of a free and 
open market and national market system, and in general, to protect 
investors and the public interest. The Commission believes that the 
proposed rule change, as amended, should remove impediments to and 
perfect the mechanisms of a free and open market and national market 
system by removing an unnecessary and potentially costly obligation on 
firms to deliver quarterly account statements to DVP/RVP customers. At 
the same time, the proposal maintains certain investor protections 
(i.e., requiring NYSE member organizations to obtain affirmative 
consent to the suspension of quarterly account statements, preserving 
the ability of customers to obtain particular statements upon request 
and to resume receipt of statements promptly upon request, and 
precluding member organizations from unilaterally terminating delivery 
of such statements). Therefore, the Commission believes the proposal is 
consistent with the Exchange Act.
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    \14\ In approving this proposed rule change, the Commission has 
considered whether the proposed rule change will promote efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \15\ 15 U.S.C. 78f(b)(5).
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Accelerated Approval of Amendment No. 2

    The Commission finds good cause to approve Amendment No. 2 to the 
proposed rule change, as amended, prior to the thirtieth day after 
Amendment No. 2 is published for comment in the Federal Register 
pursuant to Section 19(b)(2) of the Act.\16\ Amendment No. 2 clarifies 
that transactional positions, such as those arising from a fail to 
receive or deliver money or securities, will not be deemed money or 
security positions for purposes of the proposed amended rule. The 
Commission finds that Amendment No. 2 appropriately addresses a concern 
raised by a commenter.\17\ For these reasons, the Commission believes 
that good cause exists to accelerate approval of Amendment No. 2.
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    \16\ 15 U.S.C. 78s(b)(2).
    \17\ See BNP letter, footnote 6, supra.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\18\ that the proposed rule change (SR-NYSE-2005-90), as 
amended by Amendment No. 1 thereto, be, and hereby is, approved, and 
that Amendment No. 2 thereto, be, and hereby is, approved on an 
accelerated basis.
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    \18\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-20227 Filed 11-28-06; 8:45 am]

BILLING CODE 8011-01-P
