

[Federal Register: February 4, 2008 (Volume 73, Number 23)]
[Notices]               
[Page 6540-6542]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe08-75]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57213; File No. SR-NYSE-2008-07]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Relating to the Extension of Crossing Sessions III and IV Pilots

 January 28, 2008.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on January 22, 2008, the New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the Exchange. The Exchange 
filed the proposed rule change pursuant to section 19(b)(3)(A) of the 
Act \3\ and Rule 19b-4(f)(6) thereunder, which renders it effective 
upon filing with the Commission.\4\ The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The NYSE proposes to extend until February 1, 2009 the following 
pilot programs: Crossing Session III, for the execution of guaranteed 
price coupled orders by member organizations to fill the balance of 
customer orders at a price that was guaranteed to a customer prior to 
the close of the Exchange's 9:30 a.m. to 4 p.m. trading session; and 
Crossing Session IV, whereby an unfilled balance of an order may be 
filled at a price such that the entire order is filled at no worse 
price than the Volume Weighted Average Price (``VWAP'') for the subject 
security.
    The text of the proposed rule change is available on the NYSE's Web 
site (http://www.nyse.com), at the NYSE's Office of Secretary, and at 

the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NYSE 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 
Exchange 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
    In SR-NYSE-2002-40,\5\ the Commission approved the establishment of 
two new crossing sessions (Crossing Sessions III and IV) in the 
Exchange's Off-Hours Trading

[[Page 6541]]

Facility (``OHTF'') as a pilot program (``Pilot''), expiring on 
December 1, 2004. In SR-NYSE-2005-01,\6\ the Commission approved an 
extension of the Pilot to February 1, 2006. In SR-NYSE-2006-02,\7\ the 
Commission approved an extension of the Pilot to February 1, 2007. In 
SR-NYSE-2007-07 \8\ the Commission approved an extension of the Pilot 
to February 1, 2008.
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    \5\ See Securities Exchange Act Release No. 48857 (December 1, 
2003), 68 FR 68440 (December 8, 2003) (SR-NYSE-2002-40).
    \6\ See Securities Exchange Act Release No. 51091 (January 28, 
2005), 70 FR 6484 (February 7, 2005) (SR-NYSE-2005-01).
    \7\ See Securities Exchange Act Release No. 53275 (February 13, 
2006), 71 FR 8626 (February 17, 2006) (SR-NYSE-2006-02).
    \8\ See Securities Exchange Act Release No. 55281 (February 12, 
2007), 72 FR 7804 (February 20, 2007) (SR-NYSE-2007-07).
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    This filing seeks to extend the Pilot until February 1, 2009. 
Crossing Sessions III and IV are described below.
Background
    The purpose of the original proposed rule change was to add two 
additional ``Crossing Sessions'' (Crossing Sessions III and IV) to the 
Exchange's OHTF. Before the proposed rule change, the OHTF consisted of 
Crossing Sessions I and II. Crossing Session I permits the execution, 
at the Exchange's closing price, of single-stock, single-sided closing 
price orders and crosses of single-stock, and closing price buy and 
sell orders. Crossing Session II permits the execution of crosses of 
multiple-stock (``basket'') aggregate-priced buy and sell orders. For 
Crossing Session II, trade reporting is accomplished by reporting to 
the Consolidated Tape the total number of shares and the total market 
value of the aggregate-price trades. There is no indication of the 
individual component stocks involved in the aggregate-price 
transactions.
Crossing Session III
    The Exchange is proposing to extend until February 1, 2009, the 
Pilot in Crossing Session III. Crossing Session III is described in 
Exchange Rule 907. This Pilot would continue to allow for the execution 
on the NYSE of ``guaranteed price coupled orders'' whereby member 
organizations could fill the unfilled balance of a customer order at a 
price which was guaranteed to the customer prior to the close of the 
Exchange's 9:30 a.m. to 4 p.m. trading session.
    Member firms, in serving their institutional customers, may offer 
them a guarantee that a large size order will receive no worse than a 
particular price. Such a practice is usually referred to as an 
``upstairs stop,'' meaning that the firm guarantees that its customer's 
order will be executed at no worse price than the agreed-upon, 
guaranteed price, with the member firm trading for its own account, if 
necessary, to effectuate the guarantee.
    Typically, a member firm will seek to execute as much of the order 
as possible during the trading day at or below the ``stop'' price (in 
the case of a buy order) or at or above the ``stop'' price (in the case 
of a sell order). Any portion of the order not filled during the 
trading day will be completed after hours, with the firm either buying 
from, or selling to, its customer at a price which ensures that the 
entire order is executed at a price which is no worse than the ``stop'' 
price.
    Member firms typically execute the unfilled balance of the order, 
after the U.S. Consolidated Tape is closed, in the London over-the-
counter market, where trades are not reported in real time. The purpose 
of this is simply to minimize the possibility that other market 
participants may ascertain the firm's, or the customer's inventory 
position, and possibly trade in the subject security to the detriment 
of the firm that granted the ``upstairs stop.'' The Exchange believes 
that it is more transparent to print the trade in the NYSE primary 
market during U.S. Consolidated Tape hours.
Crossing Session IV
    The Exchange is also proposing to extend the Pilot in Crossing 
Session IV (which is also described in Exchange Rule 907), until 
February 1, 2009. Crossing Session IV is a facility whereby member 
organizations may fill the unfilled balance of a customer's order at a 
price such that the overall order is filled at a price that is no worse 
than the VWAP (the volume weighted average price) for the subject 
security on that trading day. The member organization would be required 
to document its VWAP agreement with the customer and the basis upon 
which the VWAP price would be determined.
Operation of Crossing Sessions
    As described in NYSE Information Memos 04-30 and 05-57 and Rule 
907, Crossing Sessions III and IV would continue to operate as follows:
    (i) The original order as to which an ``upstairs stop'' or ``VWAP'' 
has been granted may be of any size;
    (ii) The customer must have received a ``stop'' (guaranteed price) 
or VWAP for the entire order;
    (iii) The member firm must record all details of the order, 
including the price it has guaranteed its customer or that the entire 
order will be filled at no worse than the VWAP;
    (iv) An order or the unfilled balance of an order that would be 
executed in Crossing Session III or Crossing Session IV may be of any 
size;
    (v) The customer's order must be executed in Crossing Session III 
or Crossing Session IV at a price that ensures that the entire order is 
executed at a price that is no worse than the guaranteed price or the 
VWAP;
    (vi) Orders may be entered in Crossing Session III or Crossing 
Session IV between 4 p.m. and 6:30 p.m., and must be identified as 
either a Crossing Session III or Crossing Session IV order;
    (vii) Member firms will receive an immediate report of execution 
upon entering an order into Crossing Session III or Crossing Session 
IV;
    (viii) Orders may be entered into Crossing Session III for 
execution at prices outside the trading range in the subject security 
during the 9:30 a.m. to 4 p.m. trading session;
    (ix) Orders may not be entered into Crossing Session III or 
Crossing Session IV in a security that is subject to a trading halt at 
the close of the regular 9:30 a.m. to 4 p.m. trading session; and
    (x) At 6:30 p.m., the Exchange will print trades reported through 
Crossing Session III as guaranteed price coupled orders or in Crossing 
Session IV as VWAP executions.
2. Statutory Basis
    NYSE believes that the proposed rule change is consistent with 
section 6 of the Act \9\ in general, and furthers the objectives of 
section 6(b)(5) of the Act \10\ in particular, in that it 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 
a national market system and, in general, to protect investors and the 
public interest.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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B. Self Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The Exchange has filed the proposed rule change pursuant to section

[[Page 6542]]

19(b)(3)(A)(iii) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\13\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ Rule 19b-4(f)(6) also requires the Exchange to give the 
Commission written notice of its intent to file the proposed rule 
change along with a brief description and text of the proposed rule 
change, at least five business days prior to the date of filing of 
the proposed rule change, or such shorter time as designated by the 
Commission. The Exchange has satisfied the pre-filing requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative prior to 30 days after the date of the filing. 
However, pursuant to Rule 19b-4(f)(6)(iii),\14\ the Commission may 
designate a shorter time if such action is consistent with the 
protection of investors and the public interest. NYSE has asked the 
Commission to waive the 30-day operative delay so that the proposal may 
become operative immediately upon filing. The Exchange believes the 
waiver of this period will allow it to continue the Pilots without 
undue delay, which it believes is in the public interest as it will 
avoid inconvenience and interruption to the public. The Commission 
believes such waiver is consistent with the protection of investors and 
the public interest because it presents no new issues and would allow 
the Pilots to operate without interruption. For this reason, the 
Commission designates the proposal to be operative upon filing with the 
Commission.\15\
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    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ For purposes only of waiving the 30-day pre-operative 
period, the Commission has considered the proposed rule's impact on 
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send e-mail to rule-comments@sec.gov. Please include File 

Number SR-NYSE-2008-07 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2008-07. 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 (http://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 will also be available for 
inspection and copying at the principal office of the NYSE. 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-NYSE-2008-07 and should be 
submitted on or before February 25, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E8-1879 Filed 2-1-08; 8:45 am]

BILLING CODE 8011-01-P
