46270 Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 

22For example, if a company had been notified 

that its security was below either the market value 

of listed securities or market value of publicly held 

shares requirement 95 days before the proposed 

rule is approved, the company would not receive 

any additional time as a result of the proposed rule 

change. Such companies would continue through 

the Hearings and Appeals process, however, and 

could receive additional time as provided for in 

Rules 5815(c)(1)(A) and 5820(d)(1). 

23Rule 5810(c)(2)(B)(i). 

24The proposal to allow a company additional 

time at the end of its extension based on staff’s 

further review of the company is consistent with 

Nasdaq’s current practice of potentially allowing a 

company additional time if it was not initially 

granted the full 105 days allowed by current Rule 

5810(c)(2)(B)(i). 

25Such companies would continue through the 

Hearings and Appeals process, however, and could 

receive additional time as provided for in Rules 

5815(c)(1)(A) and 5820(d)(1). 

26 15 U.S.C. 78f. 

27 15 U.S.C. 78f(b)(5). 

28 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

meet either of those requirements before 

the proposed rule change is approved.22

With respect to the proposed changes 

to the compliance plan process, if a 

company has not yet submitted its plan 

of compliance when the proposed rule 

change is approved, the deadline to 

submit that plan would be extended 

until 45 days from the date of staff’s 

notification of the deficiency. If the 

company had submitted its plan of 

compliance when the proposed rule 

change is approved, but staff has not yet 

made a determination with respect to 

whether to grant additional time, staff 

would be permitted to grant the 

company up to 180 days from staff’s 

notification of the deficiency to regain 

compliance. If the company has already 

received an extension of time to regain 

compliance from staff when the 

proposed rule change is approved,23 at 

the end of that exception staff could, 

based on a review of the company at the 

time, grant additional time for the 

company to regain compliance, up to 

180 days from staff’s original 

notification of the deficiency.24 No 

additional time would be provided to a 

company that had already received a 

Staff Delisting Determination at the time 

the proposed rule change is approved.25

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,26 in 

general and with Sections 6(b)(5) of the 

Act,27 in particular, which requires, 

among other things, that a national 

securities exchange’s rules must be 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, and, in general, to protect 

investors and the public interest. 

Nasdaq believes that the proposed rule 

change is consistent with these 

requirements in that it would enhance 

consistency within Nasdaq’s rules and 

between Nasdaq and other markets, 

thereby reducing investor confusion and 

facilitating capital formation, while 

permitting reasonable periods of time 

for companies to address instances of 

non-compliance with Nasdaq rules. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

Nasdaq does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

A. By order approve such proposed 

rule change, or 

B. Institute proceedings to determine 

whether the proposed rule change 

should be 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–NASDAQ–2009–077 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–NASDAQ–2009–077. 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–NASDAQ–2009–077 and 

should be submitted on or before 

September 29, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–21644 Filed 9–4–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60609; File No. SR–BX– 

2009–056] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Amend the 

Fee Schedule of the Boston Options 

Exchange Facility 

September 1, 2009. 

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

Securities Exchange Act of 1934 (‘‘Act’’ 

or ‘‘Exchange Act’’) 1 and Rule 19b–4 

thereunder,2 notice is hereby given that 

on August 31, 2009, NASDAQ OMX BX, 

Inc. (the ‘‘Exchange’’) filed with the 


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Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 46271 

3 15 U.S.C. 78s(b)(3)(A)(ii). 

4 17 CFR 240.19b–4(f)(2). 

5A recent proposal submitted by the Exchange for 

immediately [sic] effectiveness removed the 

following three (3) exchange-traded fund share 

classes from the Liquidity Make or Take pricing 

structure: (1) Standard & Poor’s Depositary 

Receipts® (SPY); (2) Powershares® QQQ Trust 

Series 1 (QQQQ); and (3) iShares Russell 2000® 

Index Fund (IWM). See Securities Exchange Act 

Release No. 60221 (July 1, 2009), 74 FR 32996 (July 

9, 2009) (SR–BX–2009–033). These three classes 

will remain subject only to ‘standard’ fees. 

6Terms not otherwise defined herein shall have 

the meaning proscribed in the Options Order 

Protection and Locked/Crossed Market Plan or the 

BOX Rules, respectively. 

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

8 15 U.S.C. 78f(b)(4). 

9 15 U.S.C. 78s(b)(3)(A)(ii). 

10 17 CFR 240.19b–4(f)(2). 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. The 

Exchange filed the proposed rule change 

pursuant to Section 19(b)(3)(A)(ii) of the 

Act 3 and Rule 19b–4(f)(2) thereunder,4

which renders the proposal effective 

upon filing with the Commission. 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 the 

Fee Schedule of the Boston Options 

Exchange Group, LLC (‘‘BOX’’). The text 

of the proposed rule change is available 

from the principal office of the 

Exchange, at the Commission’s Public 

Reference Room and also on the 

Exchange’s Internet Web site at http:// 

nasdaqomxbx.cchwallstreet.com/ 

NASDAQOMXBX/Filings/. 

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 these statements may be examined at 

the places specified in Item IV below. 

The self-regulatory organization 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 

The Exchange proposes to eliminate 

the Liquidity Make or Take Pricing 

Structure on BOX, as described in 

Sections 7(a) and 7(b) of the current 

BOX Fee Schedule. The Liquidity Make 

or Take Pricing Structure, and its 

respective charges and credits, currently 

applies to most classes listed for trading 

on BOX that are included in the Penny 

Pilot Program, as referenced in Chapter 

V, Section 33 of the BOX Rules (‘‘Penny 

Pilot Classes’’).5

As proposed, the Liquidity Make or 

Take Pricing Structure will no longer 

apply and instead ‘standard’ execution 

fees will be applied to executions in all 

Penny Pilot Classes, except with regard 

to inbound P and P/A Order 

executions.6 The Exchange believes that 

this proposed fee change will align its 

pricing so as to better compete with 

other exchanges for executions in Penny 

Pilot Classes. 

The Exchange is proposing that these 

changes become effective on September 

1, 2009. In conjunction with this 

proposal, the Exchange proposes to 

issue a Regulatory Circular notifying 

BOX Options Participants of the 

impending change to pricing for 

executions on the BOX Market. 

2. Statutory Basis 

The Exchange believes that the 

proposal is consistent with the 

requirements of Section 6(b) of the Act,7

in general, and Section 6(b)(4) of the 

Act,8 in particular, in that it provides for 

the equitable allocation of reasonable 

dues, fees, and other charges among its 

members and issuers and other persons 

using its facilities. In particular, this 

proposed fee change will apply to all 

member order types and amend pricing 

for executions on BOX so as to better 

compete with the current pricing in 

place on other exchanges. 

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 

The Exchange has neither solicited 

nor received comments on the proposed 

rule change. 

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 Exchange Act 9 and 

Rule 19b–4(f)(2) thereunder,10 because 

it establishes or changes a due, fee, or 

other charge applicable only to a 

member. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

the rule change if it appears to the 

Commission that the action is necessary 

or appropriate in the public interest, for 

the protection of investors, or would 

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

Number SR–BX–2009–056 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–BX–2009–056. 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 


jlentini on DSKJ8SOYB1PROD with NOTICES
46272 Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 

11 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See NYSE Arca Equities Rule 1.1(n). 

4See NYSE Arca Equities Rule 6.3. 

5See NYSE Arca Equities Rule 6.16: ‘‘No ETP 

Holder may accept and hold an unexecuted limit 

order from its customer * * * and continue to trade 

on the Corporation the subject security for its own 

account at prices that would satisfy the customer’s 

limit order without executing that limit order.’’ 

6See NYSE Arca Equities Rule 6.6: ‘‘An ETP 

Holder or associated person obtaining information 

of an immediate pending transaction or a 

transaction executed but not yet reported on any 

national securities exchange or association 

involving 5,000 shares or more of a security 

including an equivalent number of option contracts 

admitted to dealings on the NYSE Arca, Inc., or 

securities underlying the options so admitted, shall 

not initiate or transmit an order in the security 

involved, or options relating to that security, 

through the facilities of the Corporation for any 

account in which he or she or his or her 

organization are participants until after the 

transaction appears on the ticker or is otherwise 

disclosed, in the case of orders pertaining to 

equities, or until two minutes after such disclosure, 

in the case of orders pertaining to options. 

Exceptions will require prior approval from the 

Corporation.’’ 

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 No. 

SR–BX–2009–056 and should be 

submitted on or before September 29, 

2009.11

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–21643 Filed 9–4–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60604; File No. SR– 

NYSEArca–2009–78] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and Order 

Granting Accelerated Approval of a 

Proposed Rule Change Eliminating 

NYSE Arca Equities Rule 7.26, Adding 

New NYSE Arca Equities Rule 6.7 and 

Amending NYSE Arca Equities Rule 

6.18 

September 1, 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 

25, 2009, NYSE Arca, Inc. (‘‘NYSE 

Arca’’ 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 NYSE Arca. 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 (i) 

eliminate the requirement of NYSE Arca 

Equities Rule 7.26 that Market Makers 

establish and maintain certain 

specifically prescribed information 

barriers, (ii) add new NYSE Arca 

Equities Rule 6.7 regarding trading 

ahead of research reports, and (iii) 

revising NYSE Arca Equities Rule 6.18 

to incorporate compliance with NASD 

Rule 3010. 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 

The Exchange proposes to eliminate 

the requirement set forth in NYSE Arca 

Equities Rule 7.26 that Market Makers 

on the Corporation maintain certain 

specifically prescribed information 

barrier procedures. At the same time, 

the Exchange further proposes new 

NYSE Arca Equities Rule 6.7, which (i) 

prohibits ETP Holders from trading 

ahead of research reports and (ii) 

requires each ETP Holder to establish, 

maintain and enforce procedures 

regarding the flow of information 

between research department personnel 

and trading department personnel. 

Finally, the Exchange proposes to revise 

NYSE Arca Equities Rule 6.18 to 

incorporate compliance with NASD 

Rule 3010. 

All Members Must Maintain Policies 

Concerning the Misuse of Material NonPublic Information 

Presently, NYSE Arca requires that 

each ETP Holder 3 establish, maintain 

and enforce written policies and 

procedures reasonably designed to 

prevent the misuse of material, nonpublic information by the ETP Holder or 

persons associated with the ETP 

Holder.4 For purposes of this 

requirement, conduct constituting the 

misuse of material, non-public 

information includes, but is not limited 

to, the following: 

(a) trading in any securities issued by 

a corporation, or in any related 

securities or related options or other 

derivative securities, while in 

possession of material, non-public 

information concerning that issuer; or 

(b) trading in a security or related 

options or other derivative securities, 

while in possession of material, nonpublic information concerning 

imminent transactions in the security or 

related securities; or 

(c) disclosing to another person or 

entity any material, non-public 

information involving a corporation 

whose shares are publicly traded or an 

imminent transaction in an underlying 

security or related securities for the 

purpose of facilitating the possible 

misuse of such material, non-public 

information. 

The Exchange also has several rules 

prohibiting ETP Holders from 

disadvantaging their customers or other 

market participants by improperly 

capitalizing on the ETP Holders’ access 

to or receipt of material, non-public 

information. For example, NYSE Arca 

Equities Rule 6.16 prohibits an ETP 

Holder from trading ahead of its 

customer’s limit orders.5 In addition, 

the Exchange prohibits the practice of 

‘‘front-running’’ block transactions.6

Members Retain Responsibility for 

Compliance 

In this context, by prohibiting the 

misuse of material, non-public 

information, the Exchange has 

appropriately defined the behavior that 

its participants must avoid. In the 

Exchange’s view, prescribing the form 

that these policies and procedures must 

take is unnecessarily burdensome. By 

defining certain prohibited behavior 

(e.g., Rules 6.3, 6.16, and 6.6) the 

Exchange has placed its participants on 

notice as to their specific compliance 


jlentini on DSKJ8SOYB1PROD with NOTICES