[Federal Register Volume 70, Number 169 (Thursday, September 1, 2005)]
[Rules and Regulations]
[Pages 52014-52015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17531]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 242

[Release No. 34-52355; File No. S7-10-04]


Regulation NMS

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; extension of compliance date.

-----------------------------------------------------------------------

SUMMARY: The Commission is extending the compliance date for the 
amendment to Rule 301(b)(5) of Regulation ATS under the Securities 
Exchange Act of 1934 that was adopted in connection with Regulation 
NMS.

DATES: The effective date for amended Rule 301(b)(5) remains August 29, 
2005. The compliance date for amended Rule 301(b)(5) is extended from 
August 29, 2005 to September 28, 2005.

FOR FURTHER INFORMATION CONTACT: Michael Gaw, (202) 551-5602, Assistant 
Director, Division of Market Regulation, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: On June 29, 2005, the Securities and 
Exchange Commission (``Commission'') published in the Federal Register 
its release adopting Regulation NMS \1\ under the Securities Exchange 
Act of 1934 (``Exchange Act''). In connection with the adoption of 
Regulation NMS, the Commission amended Rule 301(b)(5) of Regulation ATS 
\2\ under the Exchange Act (``Fair Access Rule''). The Fair Access Rule 
provides, among other things, that, if an alternative trading system 
accounts for a certain percentage of the average daily volume in a 
security over four of the preceding six months, it: (1) Must establish 
written standards for granting access to trading on its system, and (2) 
must not unreasonably prohibit or limit any person in respect to access 
to services offered by such system by applying these written standards 
in an unfair or discriminatory manner.\3\ In adopting Regulation NMS, 
the Commission amended the Fair Access Rule to lower the fair access 
threshold from 20% of the average daily volume in a security to 5%. The 
Regulation NMS Adopting Release established an effective date and a 
compliance date of August 29, 2005 for the amended Fair Access Rule.
---------------------------------------------------------------------------

    \1\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
    \2\ See 17 CFR 242.300 et seq. Regulation ATS governs the 
activities of alternative trading systems.
    \3\ See 17 CFR 242.301(b)(5).
---------------------------------------------------------------------------

    A number of questions have been raised during the implementation 
period regarding the application of the amended Fair Access Rule to 
different business models. The Commission and its staff are continuing 
to consider these issues as well as requests for exemptive relief. 
Delaying the compliance date for thirty days will permit the Commission 
and its staff additional time to respond to the questions and exemptive 
requests.
    For the reasons cited above and given the impending August 29, 2005 
compliance date, the Commission, for good cause, finds that notice and 
solicitation of comment regarding the extension of the compliance date 
for the amended Fair Access Rule is impracticable, unnecessary, or 
contrary to the public interest.\4\ The Commission notes that the 
compliance date is a few days away, and that a limited extension of the 
compliance date will provide the Commission and its staff with needed 
time to resolve implementation issues with respect to various market 
participants.
---------------------------------------------------------------------------

    \4\ See Section 553(b)(3)(B) of the Administrative Procedure Act 
(5 U.S.C. 553(b)(3)(B)) (an agency may dispense with prior notice 
and comment when it finds, for good cause, that notice and comment 
are ``impracticable, unnecessary, or contrary to the public 
interest'').
---------------------------------------------------------------------------

    Further, the Commission notes that, in light of these time 
constraints, full notice and comment could not be completed prior to 
the August 29, 2005 compliance date. The change to the compliance date 
for amended Rule 301(b)(5) is effective immediately. This date is less 
than 30 days after publication in the Federal Register, in accordance 
with the Administrative Procedure Act, which allows effectiveness in 
less than 30 days after publication for ``a substantive rule which 
grants or recognizes an exemption or relieves a restriction.''\5\
---------------------------------------------------------------------------

    \5\ 5 U.S.C. 553(d)(1).

    By the Commission.

[[Page 52015]]

    Dated: August 29, 2005.
Jonathan G. Katz,
Secretary.
[FR Doc. 05-17531 Filed 8-30-05; 1:53 pm]
BILLING CODE 8010-01-P