18274 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3A Complex Order is any order involving the 

simultaneous purchase and/or sale of two or more 

different options series in the same underlying 

security, priced at a net debit or credit based on the 

relative prices of the individual components, for the 

same account, for the purpose of executing a 

particular investment strategy. Furthermore, a 

Complex Order can also be a stock-option order, 

which is an order to buy or sell a stated number 

of units of an underlying stock or ETF coupled with 

the purchase or sale of options contract(s). See 

Exchange Rule 1080, Commentary .08(a)(i). 

Act), as well as with Section 16(a) of the 

Act and, if and when applicable, 

Section 16(b) of the Act. Further, each 

Insurance Fund will act in accordance 

with the Commission’s interpretations 

of the requirements of Section 16(a) 

with respect to periodic elections of 

directors/trustees and with whatever 

rules the Commission may promulgate 

thereto. 

9. An Insurance Fund will make its 

shares available to the VLI Accounts, 

VA Accounts, and Plans at or about the 

time it accepts any capital from its 

investment adviser (or affiliates) or from 

a general account of a Participating 

Insurance Company. 10. Each Insurance Fund has notified, 

or will notify, all Participants that 

disclosure regarding potential risks of 

mixed and shared funding may be 

appropriate in VLI Account and VA 

Account prospectuses or Plan 

documents. Each Insurance Fund will 

disclose, in its prospectus that: (a) 

Shares of the Insurance Fund may be 

offered to both VA Accounts and VLI 

Accounts and, if applicable, to Plans, (b) 

due to differences in tax treatment and 

other considerations, the interests of 

various Variable Contract owners 

participating in the Insurance Fund and 

the interests of Plan participants 

investing in the Insurance Fund, if 

applicable, may conflict, and (c) the 

Insurance Fund’s Board will monitor 

events in order to identify the existence 

of any material irreconcilable conflicts 

and to determine what action, if any, 

should be taken in response to any such 

conflicts. 

11. If and to the extent Rule 6e–2 and 

Rule 6e–3(T) under the Act are 

amended, or Rule 6e–3 under the Act is 

adopted, to provide exemptive relief 

from any provision of the Act, or the 

rules thereunder, with respect to mixed 

or shared funding, on terms and 

conditions materially different from any 

exemptions granted in the order 

requested in this Application, then each 

Insurance Fund and/or Participating 

Insurance Companies, as appropriate, 

shall take such steps as may be 

necessary to comply with Rules 6e–2 or 

6e–3(T), as amended, or Rule 6e–3, to 

the extent such rules are applicable. 12. Each Participant, at least annually, 

shall submit to the Board of each 

Insurance Fund such reports, materials 

or data as the Board reasonably may 

request so that the directors/trustees of 

the Board may fully carry out the 

obligations imposed upon the Board by 

the conditions contained in this 

Application. Such reports, materials and 

data shall be submitted more frequently 

if deemed appropriate by the Board of 

an Insurance Fund. The obligations of 

the Participants to provide these reports, 

materials and data to the Board, when 

it so reasonably requests, shall be a 

contractual obligation of all Participants 

under their Participation Agreement 

with the Insurance Fund. 

13. All reports of potential or existing 

conflicts received by the Board of each 

Insurance Fund, and all Board action 

with regard to determining the existence 

of a conflict, notifying Participants of a 

conflict and determining whether any 

proposed action adequately remedies a 

conflict, will be properly recorded in 

the minutes of the Board or other 

appropriate records, and such minutes 

or other records shall be made available 

to the Commission upon request. 14. Each Insurance Fund will not 

accept a purchase order from a Plan if 

such purchase would make the Plan an 

owner of 10 percent or more of the net 

assets of the Insurance Fund unless the 

Plan executes an agreement with the 

Insurance Fund governing participation 

in the Insurance Fund that includes the 

conditions set forth herein to the extent 

applicable. A Plan will execute an 

application containing an 

acknowledgement of this condition at 

the time of its initial purchase of shares. 15. Each Insurance Fund will make its 

shares available through an Account at 

or about the same time that the 

Insurance Fund receives any seed 

money from the general account of a 

Participating Insurance Company. 

Conclusion 

For the reasons summarized above, 

applicants assert that the requested 

exemptions are appropriate in the 

public interest and consistent with the 

protection of investors and the purposes 

fairly intended by the policy and 

provisions of the Act. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–7695 Filed 3–31–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–64137; File No. SR–Phlx– 

2011–37] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NASDAQ 

OMX PHLX LLC Relating to Complex 

Order Fees 

March 28, 2011. 

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 March 21, 

2011, NASDAQ OMX PHLX LLC (‘‘Phlx’’ 

or ‘‘Exchange’’) 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 

prepared by the Exchange. The 

Commission is publishing 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 

The Exchange proposes to amend its 

Complex Order 3 Fees in Section I of its 

Fee Schedule titled Rebates and Fees for 

Adding and Removing Liquidity in 

Select Symbols. 

While changes to the Fee Schedule 

pursuant to this proposal are effective 

upon filing, the Exchange has 

designated these changes to be operative 

on April 1, 2011. 

The text of the proposed rule change 

is available on the Exchange’s Website 

at http://nasdaqtrader.com/ 

micro.aspx?id=PHLXfilings, at the 

principal office of the Exchange, 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 

Exchange 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. The 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements. 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 18275 

4SPY options are based on the SPDR exchangetraded fund (‘‘ETF’’), which is designed to track the 

performance of the S&P 500 Index. 

5A list of all symbols subject to the Rebates and 

Fees for Adding and Removing Liquidity are listed 

in Section I of the Exchange’s Fee Schedule and 

titled ‘‘Select Symbols.’’ 

6The only market participant that receives a 

Rebate for Adding Liquidity for Complex Orders 

today is a Customer. 

7 15 U.S.C. 78f(b). 

8 15 U.S.C. 78f(b)(4). 9See NYSE Arca’s Fee Schedule. 10 15 U.S.C. 78s(b)(3)(A)(ii). 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of the proposed rule 

change is to amend Section I, Part B of 

the Exchange’s Fee Schedule, titled 

‘‘Complex Order’’ to pay a Customer 

Complex Order Rebate for Adding 

Liquidity of $0.25 per contract in certain 

symbols, specifically options overlying: 

(i) Standard and Poor’s Depositary 

Receipts/SPDRs (‘‘SPY’’); 4 (ii) the 

PowerShares QQQ Trust (‘‘QQQQ’’)®; 

and Apple, Inc. (AAPL), in order to 

attract additional Customer order flow 

in those symbols. 

Currently, the Exchange pays a $0.24 

per contract Customer Complex Order 

Rebate for Adding Liquidity in all Select 

Symbols.5 The Exchange is proposing to 

pay a $0.25 per contract Rebate for 

Adding Liquidity for Customer Complex 

Orders in only the following symbols: 

SPY, QQQQ and AAPL. Other market 

participants would not be entitled to the 

Rebate for Adding Liquidity.6 The 

Exchange would continue to pay 

Customers a rebate of $0.24 per contract 

for transacting a Customer Complex 

Order in all other Select Symbols, 

except SPY, QQQ and AAPL which 

would receive the $0.25 per contract 

rebate. 

The Exchange does not propose to 

amend the fees in Section I, Part A titled 

‘‘Single contra-side order.’’ 

2. Statutory Basis 

The Exchange believes that its 

proposal to amend its Fee Schedule is 

consistent with Section 6(b) of the Act 7

in general, and furthers the objectives of 

Section 6(b)(4) of the Act 8 in particular, 

in that it is an equitable allocation of 

reasonable fees and other charges among 

Exchange members. The Exchange also 

believes that there is an equitable 

allocation of reasonable rebates among 

Exchange members. 

The Exchange believes that it is 

reasonable to only pay a Rebate for 

Adding Liquidity to Customers because 

this Customer rebate would attract 

Customer order flow to the Exchange for 

the benefit of all market participants. 

The Exchange believes that the proposal 

is equitable because by paying a Rebate 

for Adding Liquidity to Customers, all 

market participants would benefit from 

the increased liquidity which increased 

Customer order flow would bring to the 

Exchange. 

Further, the Exchange believes that it 

is reasonable to pay a different rebate for 

transacting equity options in certain 

symbols. NYSE Arca, Inc. (‘‘NYSE 

Arca’’) pays an additional $.05 per 

contract credit above the stated post 

liquidity credit for electronic 

transactions in options overlying SPY, 

C, BAC, QQQQ, AAPL, IWM, XLF, GLD, 

EEM, GE, UNG, FAZ, DIA, GDX, and 

USO which are referred to as the 

‘‘premium tier.’’ 9 The Exchange is 

proposing to pay different rebates for 

different symbols similar to the manner 

in which NYSE Arca pays an additional 

contract credit in certain symbols. 

The Exchange believes that its 

proposal to pay a higher rebate for 

transactions in equity options in SPY, 

QQQQ and AAPL, as compared to the 

other Select Symbols, is equitable 

because the Exchange would uniformly 

pay the same rebates for all Customer 

Complex Orders in these three symbols. 

The Exchange operates in a highly 

competitive market comprised of nine 

U.S. options exchanges in which 

sophisticated and knowledgeable 

market participants can readily send 

order flow to competing exchanges if 

they deem fee levels at a particular 

exchange to be excessive. The Exchange 

believes that the Complex Order fees 

and rebates it assesses must be 

competitive with fees and rebates 

assessed in place on other exchanges. 

The Exchange believes that this 

competitive marketplace impacts the 

fees and rebates present on the 

Exchange today and influences the 

proposals set forth above. 

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 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 

No written comments were either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change has become 

effective pursuant to Section 

19(b)(3)(A)(ii) of the Act.10 At any time 

within 60 days of the filing of the 

proposed rule change, the Commission 

summarily may temporarily suspend 

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. If the Commission 

takes such action, the Commission shall 

institute proceedings to determine 

whether the proposed rule should be 

approved or disapproved. 

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 an e-mail to rulecomments@sec.gov. Please include File 

Number SR–Phlx-2011–37 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–Phlx–2011–37. 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 Web site viewing and 

mstockstill on DSKH9S0YB1PROD with NOTICES

18276 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 

11 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4 17 CFR 242.201. 

5See Securities Exchange Act Release No. 61595 

(February 26, 2010), 75 FR 11232 (March 10, 2010) 

(File No. S7–08–09; Amendments to Regulation 

SHO) (‘‘Rule 201 Adopting Release’’). In the Rule 

201 Adopting Release, the Commission also 

adopted amendments to Rule 200(g) of Regulation 

SHO to include a ‘‘short exempt’’ marking 

requirement. 17 CFR 242.200(g). 

6See Securities Exchange Act Release No. 63974 

(February 25, 2011), 76 FR 12198 (March 4, 2011) 

(SR–NYSEAmex–2011-08). 

7See Rule 201 Adopting Release at 11247. 

8 17 CFR 242.612. 

printing in the Commission’s Public 

Reference Room 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–Phlx–2011–37 and should 

be submitted on or before April 22, 

2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–7730 Filed 3–31–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–64133; File No. SR– 

NYSEAmex–2011–19] 

Self-Regulatory Organizations; NYSE 

Amex LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Amending NYSE Amex 

Equities Rule 440B To Modify the 

Exchange’s Procedures for Handling 

Short Sale Orders During a Period 

When the Short Sale Price Test 

Restrictions of Rule 201 of Regulation 

SHO Are in Effect 

March 28, 2011. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that on March 25, 

2011, NYSE Amex LLC (the ‘‘Exchange’’ 

or ‘‘NYSE Amex’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been 

substantially prepared by the selfregulatory organization. The 

Commission is publishing 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 

The Exchange proposes to amend 

NYSE Amex Equities Rule 440B (Short 

Sales) to modify the Exchange’s 

procedures for handling short sale 

orders during a period when the short 

sale price test restrictions of Rule 201 of 

Regulation SHO (‘‘Rule 201’’) 4 are in 

effect (‘‘Short Sale Period’’). The text of 

the proposed rule change is available at 

the Exchange, the Commission’s Public 

Reference Room, and http:// 

www.nyse.com. 

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 

self-regulatory organization 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 those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

On February 26, 2010, the 

Commission adopted amendments to 

Rule 201 of Regulation SHO under the 

Act.5 In order to implement the 

provisions of revised Rule 201, the 

Exchange amended NYSE Amex 

Equities Rule 440B (Short Sales) to (1) 

Establish procedures for the Exchange, 

as a listing market, to determine that the 

short sale price test restrictions of Rule 

201 have been triggered for a covered 

security, (2) establish the protocols for 

the handling of short sale orders by the 

Exchange, as a trading center, in the 

event the short sale price test 

restrictions of Rule 201 are triggered, 

including establishing what types of 

short sale orders will be re-priced to 

achieve a ‘‘Permitted Price’’ (as defined 

and calculated in Rule 440B(e)), in 

accordance with Rule 201, during a 

Short Sale Period, (3) establish the 

Exchange’s procedures regarding the 

execution and display of permissible 

orders during a Short Sale Period, and 

the execution and display of orders 

marked ‘‘short exempt’’ during such a 

period, (4) establish the Exchange’s 

procedures regarding the permissible 

execution price of short sale orders in 

single-priced opening, re-opening and 

closing transactions during a Short Sale 

Period, and (5) provide that, during a 

Short Sale Period, Exchange systems 

will not execute or display a short sale 

order with respect to that security at a 

price that is less than or equal to the 

current national best bid (except as 

otherwise provided in Rule 440B and 

consistent with Rule 201).6

Under Rule 440B(e), during a Short 

Sale Period, short sale orders that are 

limited to the national best bid or lower 

and short sale market orders will be repriced by Exchange systems one 

minimum price increment above the 

current national best bid to permit their 

execution at a price that is compliant 

with the short sale price test restrictions 

of Rule 201. Consistent with Rule 201,7

the Permitted Price for securities for 

which the national best bid is $1 or 

more is $.01 above the national best bid; 

the Permitted Price for securities for 

which the national best bid is below $1 

is $.0001 above the national best bid.8

Among other things, Rule 440B(f) 

implements Rule 201(b)(1)(iii)(A), 

which provides that a trading center 

must have policies and procedures 

reasonably designed to permit the 

execution of a displayed short sale order 

of a covered security if, at the time of 

the initial display of the short sale 

order, the order was at a price above the 

current national best bid. Rule 440B(f) 

specifically provides that the Exchange 

will execute and display a short sale 

order without regard to price if, at the 

time of the initial display of the short 

sale order, the order was at a price 

above the then current national best bid. 

The Exchange proposes to amend 

Rule 440B(e) to provide for how 

Exchange systems will treat short sale 

orders that are not marked ‘‘short 

exempt’’ during a Short Sale Period, i.e., 

displayed short sale orders pursuant to 

Rule 440B(f) or non-marketable 

displayable or non-displayed short sale 

orders that Exchange systems have not 

yet re-priced pursuant to Rule 440B(e), 

and that would be required to be routed 

to a protected bid pursuant to 

Regulation NMS, which, by definition, 

would be the national best bid or lower. 

An example of a situation where 

Exchange systems would otherwise be 

required to route to the national best bid 

includes the following: (1) A short sale 

order is displayed pursuant to Rule 

mstockstill on DSKH9S0YB1PROD with NOTICES