43182 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices 

39 15 U.S.C. 78f(b)(5). 

40See Plan Approval, supra, note 5. 

41The Commission notes that any Participating 

Options Exchange that wishes to utilize such order 

types in a manner that would result in a TradeThrough would need to separately request an 

exemption from the Plan for such use. 

42The Commission notes that the rules contained 

in NYSE Arca Temporary Rule 6.96 are not required 

by the Plan, but rather are rules proposed by the 

Exchange in order to facilitate the participation in 

the Plan of certain exchanges during an initial 

transition period. 

43 15 U.S.C. 78f(b)(5). 

44 15 U.S.C. 78s(b)(2). 

45 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(e). 

4 17 U.S.C. 78a. 

5 17 CFR 240.19b–4(c)(1). 

6 15 U.S.C. 78s(b). 

7E-mail from Timothy Malinowski, Director, 

NYSE Euronext, to Edward Cho, Special Counsel, 

Division of Trading and Markets, Commission, 

dated August 11, 2009 (‘‘Exchange Confirmation’’). 

8See Securities Exchange Act Release No. 40761 

(December 8, 1998), 63 FR 70952 (December 22, 

1998) [sic]. 

9See Securities Exchange Act Release No. 34– 

58968 (November 17, 2008), 73 FR 64647 [sic] (SR– 

NYSEArca–2008–111). 

10See Securities Exchange Act Release No. 34– 

57739 (April 30, 2008), 73 FR 25061 [sic] (SR– 

Amex–2008–17). 

11See Exchange Confirmation, supra note 7. 

Act 39 which requires, among other 

things, that the rules of a national 

securities 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 a national market 

system, and, in general, to protect 

investors and the public interest. 

The Commission also finds that 

proposed NYSE Arca Temporary Rule 

6.96, which facilitates the participation 

of certain Participating Options 

Exchanges who may require the use of 

P/A Orders and Principal Orders after 

implementation of the Plan, is 

consistent with the Act. Although the 

Commission has already approved the 

Plan,40 the Commission also recognizes 

that there may be one or more 

Participating Options Exchanges that 

may require a temporary transition 

period during which they may want to 

continue to utilize these order types that 

exist currently under the Old Plan.41

The Exchange and each of the other 

Participating Options Exchanges have 

proposed substantially identical 

temporary provisions to accommodate 

this possibility.42 Thus, the Commission 

finds that the proposed rule relating to 

the Exchange’s receipt and handling of 

P/A Orders and Principal Orders, and 

imposing certain obligations on the 

Exchange with respect to such orders 

that are similar to those that exist under 

the Old Plan, is appropriate and 

consistent with Section 6(b)(5) of the 

Act 43 which requires, among other 

things, that the rules of a national 

securities 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 a national market 

system, and, in general, to protect 

investors and the public interest. 

Finally, the Commission finds that 

NYSE Arca’s other proposed changes, 

including the proposed modifications to 

NYSE Arca Rule 6.33, Commentary .02– 

.04 to NYSE Arca Rule 6.35, NYSE Arca 

Rule 6.76.A, and NYSE Arca Rule 10.12 

are appropriate and consistent with the 

Act. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,44 that the 

proposed rule change (SR–NYSEArca– 

2009–45), as modified by Amendment 

No. 1, be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.45

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–20537 Filed 8–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60535; File No. SR– 

NYSEAmex–2009–55] 

Self-Regulatory Organizations; NYSE 

Amex LLC; Notice of Filing and Order 

Granting Accelerated Approval of 

Proposed Rule Change Amending 

Section 107(H) of the NYSE Amex 

Company Guide 

August 19, 2009. 

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 August 

10, 2009, NYSE Amex LLC (‘‘NYSE 

Amex’’ or the ‘‘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 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons and is 

approving the proposed rule change on 

an accelerated basis. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

Section 107(H) of the NYSE Amex 

Company Guide in order to add the 

CBOE Volatility Index® (VIX®) Futures 

(‘‘VIX Futures’’) to the definition of 

Futures Reference Asset. The text of the 

proposed rule change is attached as 

Exhibit 5 to the 19b–4 form. A copy of 

this filing is available on the Exchange’s 

Web site at http://www.nyse.com, at the 

Exchange’s principal office 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 

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 III 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Rule 19b–4(e) 3 under the Securities 

Exchange Act of 1934 (‘‘Act’’) 4 provides 

that the listing and trading of a new 

derivative securities product by a selfregulatory organization (‘‘SRO’’) shall 

not be deemed a proposed rule change, 

pursuant to section (c)(1) of Rule 19b– 

4,5 if the Commission has approved, 

pursuant to Section 19(b) of the Act,6

the SRO’s trading rules, procedures, and 

listing standards for the product class 

that would include the new derivative 

securities product,7 and the SRO has a 

surveillance program for the product 

class.8 This proposal is substantially 

similar to the previously approved 

NYSE Arca Equities Rule 5.2(j)(6)(v).9

The Commission has approved the 

listing pursuant to Section 107(H) of the 

Amex Company Guide, including listing 

pursuant to Rule 19b–4(e), of FuturesLinked Securities.10

The Exchange is proposing to amend 

its generic listing standards under 

Section 107(H) of the NYSE Amex 

Company Guide 11 for Futures-Linked 

Securities pursuant to which it will be 

able to trade securities linked to VIX 

Futures without Commission approval 

of each individual product pursuant to 


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Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices 43183 

12 15 U.S.C. 78s(b)(2). 

13See Exchange Confirmation, supra note 7. 

14 17 CFR 240.19b–4(e)(2)(ii); 17 CFR 249.820. 

15See Securities Exchange Release No. 48807 

(November 19, 2003), 68 FR 66516 (November 26, 

2003) (SR–CBOE–2003–40). 

16For a list of the current members and affiliate 

members of ISG, see http://www.isgportal.org. 

17 15 U.S.C. 78f(b). 

18 15 U.S.C. 78f(b)(5). 

19 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 

20 15 U.S.C. 78f(b)(5). 

Section 19(b)(2) of the Act.12

Specifically, the Exchange proposes to 

amend Section 107(H) of the NYSE 

Amex Company Guide to add the VIX 

Futures as an underlying financial 

instrument of Futures-Linked Securities 

and include VIX Futures within the 

definition of a Futures Reference 

Asset.13 The Exchange represents that 

any securities it lists and/or trades 

pursuant to Section 107(H) of the NYSE 

Amex Company Guide will satisfy the 

standards set forth therein, and all 

applicable Exchange and federal 

securities rules. The Exchange states 

that within five business days after 

commencement of trading of a FuturesLinked Security in reliance on Section 

107(H) of the NYSE Amex Company 

Guide, the Exchange will file a Form 

19b–4(e).14

The Commission has previously 

approved the listing and trading of 

options on the VIX.15

a. The VIX 

The information in this filing relating 

to the VIX was taken from the Web site 

of the Chicago Board Options Exchange 

(the ‘‘CBOE’’). 

The VIX was originally developed by 

the CBOE in 1993 and was calculated 

using S&P 100® Index options. The 

current methodology for the VIX was 

introduced by the CBOE in September 

2003 and it is now an index that uses 

the quotes of certain S&P 500® Index 

(‘‘SPX’’) option series to derive a 

measure of the volatility of the U.S. 

equity market. The VIX measures 

market expectations of near term 

volatility conveyed by the prices of 

options on the SPX. It provides 

investors with up-to-the-minute market 

estimates of expected stock market 

volatility over the next 30 calendar days 

by extracting implied volatilities from 

real-time index option bid/ask quotes. 

b. VIX Futures 

Information regarding VIX Futures 

can be found on the Web site of the 

CBOE Futures Exchange (the ‘‘CFE’’). 

The CFE began listing and trading VIX 

Futures since March 26, 2004 under the 

ticker symbol VX. VIX Futures trade 

between the hours of 8:30 a.m.–3:15 

p.m. Central Time (Chicago Time). The 

CFE is a member of the Intermarket 

Surveillance Group (‘‘ISG’’).16

The Exchange believes that the 

proposed criteria to add VIX Futures as 

an underlying Futures Reference asset 

will facilitate the listing and trading of 

additional Futures-Linked Security that 

will enhance competition among market 

participants, to the benefit of investors 

and the marketplace. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) 17 of the Act in general, and 

furthers the objectives of Section 

6(b)(5) 18 in particular in that it is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

facilitating transactions in securities, 

and to remove impediments to and 

perfect the mechanisms of a free and 

open market and a national market 

system, and, in general, to protect 

investors and the public interest. The 

Exchange believes that the proposed 

rule change will facilitate the listing and 

trading of additional Futures-Linked 

Security that will enhance competition 

among market participants, to the 

benefit of investors and the marketplace. 

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 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. 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–NYSEAmex–2009–55 on 

the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

Station Place, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSEAmex–2009–55. 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 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 publicly available. All 

submissions should refer to File 

Number SR–NYSEAmex–2009–55 and 

should be submitted on or before 

September 16, 2009. 

IV. Commission’s Findings and Order 

Granting Accelerated Approval of the 

Proposed Rule Change 

After careful consideration, 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.19 In 

particular, the Commission believes that 

the proposal is consistent with Section 

6(b)(5) of the Act 20 in that it is designed 

to prevent fraudulent and manipulative 

acts and practices, to promote just and 

equitable principles of trade, to foster 

cooperation and coordination with 

persons engaged in regulating, clearing, 


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43184 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Notices 

21See supra note 9. See also NYSE Arca Equities 

Rule 5.2(j)(6)(v). 

22 15 U.S.C. 78s(b)(2). 

23 15 U.S.C. 78s(b)(2). 

24 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Securities Exchange Act Release No. 60265 (July 

8, 2009), 74 FR 34613 (‘‘Notice’’). 

4 In approving this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

5 15 U.S.C. 78f(b). 

6 15 U.S.C. 78f(b)(4). 

7The Commission notes that NASDAQ will 

implement the increased port fees September 1, 

2009. See Notice, supra note 3. 

8 17 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78s(b)(2). 

10 17 CFR 200.30–3(a)(12). 

settling, processing information with 

respect to, and facilitating transaction in 

securities, and, in general to protect 

investors and the public interest. The 

Commission notes that it has previously 

approved a proposal submitted by 

another exchange to similarly include 

VIX Futures as a Futures Reference 

Asset underlying Futures-Linked 

Securities.21

The Commission finds good cause, 

pursuant to Section 19(b)(2) of the 

Act,22 for approving the proposed rule 

change prior to the 30th day after the 

date of publication of notice in the 

Federal Register. The Commission 

believes that the Exchange’s proposal to 

add VIX Futures in the definition of 

Futures Reference Asset under Section 

107(H) of the NYSE Amex Company 

Guide does not present any novel or 

significant regulatory issues. The 

Commission believes that accelerating 

approval of this proposal should benefit 

investors by creating, without undue 

delay, additional competition in the 

market for Futures-Linked Securities 

based on VIX Futures. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,23 that the 

proposed rule change (SR–NYSEAmex– 

2009–55) be, and it hereby is, approved 

on an accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.24

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–20539 Filed 8–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60546; File No. SR– 

NASDAQ–2009–058] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Order 

Approving Proposed Rule Change To 

Modify Port Fees 

August 20, 2009. 

On June 24, 2009, The NASDAQ 

Stock Market LLC (‘‘NASDAQ’’) 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 to modify fees charged to 

members and non-members for ports 

used to enter orders into NASDAQ 

systems. The proposed rule change was 

published for comment in the Federal 

Register on July 16, 2009.3 The 

Commission received no comments 

regarding the proposal. 

NASDAQ proposes to increase the 

monthly fee that it charges for ports 

used to enter orders in NASDAQ trading 

systems such as the NASDAQ Market 

Center and the NASDAQ Options 

Market. The change, which would 

increase the charge from $400 to $500 

per month, would apply to ports using 

FIX, RASH, and OUCH and would not 

affect ports used to receive market data, 

to enter quotes, or to enter trade reports 

into the FINRA/NASDAQ Trade 

Reporting Facility. The change would 

apply to both members that obtain ports 

for direct access and non-member 

service bureaus that act as a conduit for 

orders entered by NASDAQ members 

that are their customers. 

NASDAQ also proposes to modify the 

language of Rule 7015 to make it clear 

that access service fees apply to access 

provided to all NASDAQ-operated 

systems, to replace references to NASD 

with references to FINRA, and remove 

obsolete language regarding a trial 

discount that ended in 2007. In 

addition, NASDAQ proposes to remove 

language regarding the applicability of 

the rule to members and non-members. 

NASDAQ believes that such language is 

unnecessary and potentially confusing 

to the reader. 

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 4 and, in particular, the 

requirements of Section 6(b) of the Act 5

and the rules and regulations 

thereunder. Specifically, the 

Commission finds that the proposal to 

increase the fee that it charges for ports 

used to enter orders in NASDAQ trading 

systems is consistent with Section 

6(b)(4) of the Act,6 which requires the 

equitable allocation of reasonable dues, 

fees, and other charges among NASDAQ 

members and other persons using 

NASDAQ’s facilities.7 The Commission 

believes that the proposed increase in 

port fees is equitably allocated among 

members and non-members, as it is 

based on the number of access ports that 

they use to submit orders to the market. 

The Commission also believes that, if 

NASDAQ’s proposed port fees are set 

too high, given the competitive nature of 

the market for execution and routing 

services, market participants could 

simply opt to connect with market 

centers other than NASDAQ to access 

liquidity available on NASDAQ by 

directing order flow to the other market 

centers that are required to route to 

NASDAQ if it has posted the best 

available price. As such, the 

Commission believes that NASDAQ’s 

proposed increase in port fees is both 

equitably allocated and reasonable. 

In addition, the Commission believes 

that the clarifying changes to Rule 7015 

are consistent with the requirements of 

Section 6(b)(5) of the Act,8 which 

requires, among other things, that 

NASDAQ’s rules 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 a national market 

system, and, in general, to protect 

investors and the public interest. The 

Commission believes that updating and 

removing certain outdated or 

unnecessary references in Rule 7015 

would provide additional clarity to the 

rule text, for the benefit of market 

participants accessing NASDAQ’s 

facilities and the marketplace as a 

whole. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,9 that the 

proposed rule change (SR–NASDAQ– 

2009–058) be, and it hereby is, 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–20594 Filed 8–25–09; 8:45 am] 

BILLING CODE 8010–01–P 


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