Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 6069 

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

2 17 CFR 240.19b–4. 

3Securities Exchange Act Release No. 59154 

(December 23, 2008), 73 FR 80468 (SR–BSE–2008– 

48). 

4 15 U.S.C. 78s(b)(3)(A). 

5See proposed Equity Rule 7023. 

6See proposed Equity Rule 7019. 

7 Id. 

8See proposed Equity Rule 7025. 

9See proposed Equity Rule 7035. These annual 

administrative fees can be waived for colleges and 

universities receiving the data for research and 

educational purposes. 

Act of 1934, that trading in the above 

listed company is suspended for the 

period from 9:30 a.m. EST on February 

2, 2009, through 11:59 p.m. EST on 

February 13, 2009. 

By the Commission. 

J. Lynn Taylor, 

Assistant Secretary. 

[FR Doc. E9–2448 Filed 2–2–09; 11:15 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59307; File No. SR–BX– 

2009–005] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

of Proposed Rule Change To Establish 

New Fees for Services Available to 

Members and Non-Members 

January 28, 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 January 

14, 2009, NASDAQ OMX BX, Inc. 

(‘‘Exchange’’) filed with the 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 

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 adopt fees 

applicable to members and nonmembers in connection with the 

resumption of its cash equities trading 

business. The text of the proposed rule 

change is available from the principal 

office of the Exchange and from the 

Commission, and is also available at 

http://www.nasdaqtrader.com/ 

Trader.aspx?id=BSEPendingRules. The 

Exchange proposes to implement the 

proposed rule change as soon as 

practicable following Commission 

approval. 

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. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

On August 29, 2008, the Exchange 

was acquired by The NASDAQ OMX 

Group, Inc. (‘‘NASDAQ OMX’’). At the 

time of this acquisition, the Exchange 

was not operating a venue for trading 

cash equities. Pursuant to SR–BSE– 

2008–48, the Exchange has adopted a 

new rulebook with rules governing 

membership, the regulatory obligations 

of members, listing, and equities 

trading.3 The new rules, which are 

designated as the ‘‘Equity Rules,’’ are 

based to a substantial extent on the rules 

of The NASDAQ Stock Market LLC (the 

‘‘NASDAQ Exchange’’). The Equity 

Rules leave in effect the Exchange’s preexisting rules (the ‘‘Options Rules’’) for 

the purpose of governing trading on the 

Exchange’s Boston Options Exchange 

facility (‘‘BOX’’). In addition, in SR–BX– 

2009–004, which was immediately 

effective pursuant to Section 19(b)(3)(A) 

of the Act,4 the Exchange adopted new 

fees applicable solely to its members. 

In this filing, the Exchange is 

proposing new fees to be charged to 

members and non-members in 

connection with the resumption of its 

cash equities trading business. The fee 

schedules are structurally similar to 

those of the NASDAQ Exchange, but 

with the omission of many fees that are 

not pertinent to the Exchange’s planned 

business and with several differences in 

the level of certain fees. 

Market Data 

The Exchange proposes to establish 

fees for its BX TotalView data product. 

Like NASDAQ TotalView, BX 

TotalView will provide all displayed 

quotes and orders in the market, with 

attribution to the relevant market 

participant, at every price level, as well 

as total displayed anonymous interest at 

every price level. In recognition of the 

start-up nature of the new market, the 

data feed will be provided free of charge 

to subscribers and distributors for the 

first year of operation. 

After the initial free period, 

subscribers to BX TotalView will pay a 

monthly charge of $20; however, new 

subscribers receiving BX TotalView for 

the first time after the expiration of the 

one-year introductory period will be 

able to use the product free of charge for 

an individual 30-day trial period.5

Distributors of BX TotalView will pay a 

$1,000 monthly fee to receive the data 

directly from the Exchange, since the 

Exchange incurs costs to support the 

connection to each direct distributor; 

indirect distributors (i.e., those 

receiving data from a direct distributor) 

would not pay this charge.6 Distributors 

will also pay a $500 monthly fee to 

distribute the data feed internally (i.e., 

to employees) and a $1,250 monthly fee 

to distribute to external customers.7

All of the foregoing fees will be 

waived during the initial free period. 

Upon approval of this filing, however, 

the Exchange will begin to assess a 

limited number of fees in connection 

with data provision. Specifically, 

extranet providers that connect to the 

Exchange to provide direct access 

connectivity to market data will be 

charged a monthly access fee of $750 for 

each technical configuration used to 

provide a connection to a recipient’s 

site.8 In addition, data distributors will 

pay an annual administrative fee of 

$500 for delayed distribution of data, 

and $1,000 for real-time distribution.9

The foregoing fee structure is similar 

to the structure for NASDAQ TotalView, 

but the overall level of fees will be 

lower than for NASDAQ TotalView. 

These fee levels reflect the start-up 

nature of the Exchange’s new equities 

trading platform, and will help to 

promote competition among exchanges 

with respect to the quoting and trading 

services. Specifically, the Exchange 

believes that the fees it sets for BX 

TotalView will help to attract order flow 

to the Exchange. At inception, the 

Exchange will have zero market share 

and therefore must set its fees, including 

data fees, with a view to attracting order 

flow. Moreover, the alternatives that 

exist for market participants to 

determine market depth—such as other 

depth of book products that may be 

associated with markets with more 

liquidity, or order routing strategies 

designed to ascertain market depth— 

provide incentives for the Exchange to 

6070 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 

10See SR–BX–2009–004 (establishing Equity Rule 

7015 to charge fees for ports used by members to 

enter orders). 

11Equity Rule 7015. 

12See proposed Equity Rule 7030(d). 

13See proposed Equity Rule 7030(b). This 

provision allows the Exchange to recoup costs 

associated with responding to ad hoc requests for 

market data, such as requests that may be made by 

news reporters or academic researchers. 

14See proposed Equity Rule 7031. This provision 

provides that market data distributors may elect to 

be billed on a prorated basis during the month of 

initiation or termination of service. 

15 15 U.S.C. 78f. 

16 15 U.S.C. 78f(b)(4). 

ensure that its fees for BX TotalView are 

set reasonably. 

The fees are not unreasonably 

discriminatory, since the fees for 

subscribers are uniform for all 

subscribers, and the fees for distributors 

are uniform except with respect to 

reasonable distinctions between internal 

and external distribution and direct and 

indirect receipt of data. The fees are fair 

and reasonable in that they compare 

favorably to fees charged by other 

exchanges for comparable products. 

Port Fees 

In order to receive BX Total View, 

subscribers must establish connectivity 

to the Exchange through extranets, 

direct connection, and Internet-based 

virtual private networks. The Exchange 

proposes to charge fees for the ports 

required to establish these connections, 

just as it will charge for access ports 

used to enter orders into the market.10

A port used for order entry cannot also 

be used to receive data; thus, a member 

seeking to enter orders and receive data 

would require at least two port pairs. 

Prior to approval of this filing, the 

Exchange will provide data ports free of 

charge. Thereafter, the Exchange will 

generally charge the same fees for data 

ports that it charges for order entry 

ports: $400 per month per port pair, 

plus an additional $200 per month for 

each Internet port that requires 

additional bandwidth due to the 

demands of the particular subscriber. In 

addition, subscribers wishing to obtain 

data will also have the option of 

obtaining a Multicast ITCH® port pair at 

a fee of $1000 per month.11 The 

differences between these two options 

relate to speed and processes for 

verifying completeness of the data. The 

standard port pair option provides one 

copy of the data and uses procedures 

under which the system receiving the 

data communicates back to the 

Exchange to verify completeness of the 

information. Under the Multicast ITCH 

option, two copies of the data are 

provided without these verification 

processes, and consequently at a higher 

rate of speed. Because the recipient of 

the data receives two copies, it can, if 

it wishes, undertake its own verification 

by programming its systems to compare 

the two copies. The fees for data ports 

are identical to the comparable fees 

charged by the NASDAQ Exchange. 

Testing 

The Exchange proposes to establish 

fees for its testing facility, to be set at 

levels identical to the fees for the 

NASDAQ Exchange’s testing facility.12

In general, the Exchange will charge 

$285 per hour for an active connection 

during the facility’s normal operating 

hours and $333 per hour for an active 

connection at other times. Because the 

fees are waived for testing of new, 

enhanced, or modified services and/or 

software offered by the Exchange, as 

well as for modifications initiated by the 

Exchange and for a 30-day period for 

new subscribers to existing services, the 

testing fees will not be charged until the 

later of (i) approval of this filing, or (ii) 

30 days after the launch of the NASDAQ 

OMX BX Equities System. Thereafter, as 

provided in the rule, the fees will be 

waived for a 30-day period for each new 

market participant. 

Other Fees 

Other fee rules relate to special data 

requests 13 and partial month charges 14

and are comparable to corresponding 

NASDAQ Exchange rules. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the Act,15

in general and with Section 6(b)(4) of 

the Act,16 as stated above, in that it 

provides an equitable allocation of 

reasonable dues, fees, and other charges 

among its members and other persons 

using the facilities. The Exchange makes 

all services and products subject to 

these fees available on a nondiscriminatory basis to similarly 

situated recipients. All fees are 

structured in manner comparable to 

corresponding fees of the NASDAQ 

Exchange already in effect, and are set 

at levels equal to or lower than the 

levels of the comparable NASDAQ 

Exchange fees. The proposed fees for BX 

TotalView are equitably allocated since 

the fees for subscribers are uniform for 

all subscribers, and the fees for 

distributors are uniform except with 

respect to reasonable distinctions 

between internal and external 

distribution and direct and indirect 

receipt of data. The fees are fair and 

reasonable in that they compare 

favorably to fees charged by other 

exchanges for comparable products. The 

proposed testing fees are uniformly 

applied to all testing facility users, 

except with respect to reasonable 

distinctions based on time of use and 

with respect to testing for new services. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange 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. 

Despite its long history, the Exchange 

will effectively be entering the 

competitive markets for equities trading 

as a start-up venture. Accordingly, its 

fees must be set at a level that will 

promote competition in these markets, 

or potential users of its services will 

simply continue to obtain services from 

the Exchange’s multiple competitors. 

Notably, with regard to market data, the 

Exchange must set fees for market data 

and transaction executions that promote 

the Exchange as a trading venue. If its 

fees are set at inappropriately high 

levels, market participants will seek to 

avoid using the Exchange, and the 

Exchange’ market data will have little 

value to market participants. In light of 

the start-up nature of the Exchange’s 

operations, the products and services 

introduced by the Exchange will 

promote competition if they succeed in 

providing market participants with 

viable and cost-effective alternatives to 

existing competitors. Conversely, they 

will have no effect on competition if 

they fail to provide such alternatives. 

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 Exchange consents, 

the Commission will: 

(A) By order approve the proposed 

rule change, or 

(B) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 6071 

17 17 CFR 200.30–3(a)(12). 

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). 

5Capitalized terms not otherwise defined herein 

shall have the meanings prescribed within the BOX 

Rules. 

6See Securities Exchange Act Release No. 53516 

(March 20, 2006), 71 FR 15232 (March 27, 2006) 

(SR–BSE–2006–14). 

7See Securities Exchange Act Release No. 53357 

(February 23, 2006), 71 FR 10730 (March 2, 2006) 

(SR–BSE–2005–52). 

8See Securities Exchange Act Release No. 54082 

(June 30, 2006), 71 FR 38913 (July 10, 2006) (SR– 

BSE–2006–29). 

9See Securities Exchange Act Release No. 54469 

(September 19, 2006), 71 FR 56201 (September 26, 

2006) (SR–BSE–2006–38). 

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 

No. SR–BX–2009–005 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–BX–2009–005. 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, 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–BX– 

2009–005 and should be submitted on 

or before February 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.17

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2251 Filed 2–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59311; File No. SR–BX– 

2009–007] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change Extending the 

Effective Date of the Rule Governing 

Exchange’s Directed Order Process on 

the Boston Options Exchange 

January 28, 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 January 

26, 2009, NASDAQ OMX BX, Inc. (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 Exchange has 

designated the proposed rule change as 

a ‘‘non-controversial’’ rule change 

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

Act 3 and Rule 19b–4(f)(6) 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 extend the 

effective date of the amended rule 

governing the Exchange’s Directed 

Order Process on the Boston Options 

Exchange (‘‘BOX’’) from January 31, 

2009 to May 29, 2009. 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:// 

nasdaqtrader.com/

Trader.aspx?id=Boston_Stock

_Exchange. 

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. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for the Propose Rule 

Change 

1. Purpose 

On March 14, 2006, the Exchange 

proposed an amendment to the BOX 

Rules governing the Directed Order 5

process on BOX.6 The Rules were 

amended to clearly state that the BOX 

Trading Host identifies to an Executing 

Participant (‘‘EP’’) the identity of the 

firm entering a Directed Order. The 

amended rule was to be effective until 

June 30, 2006 (‘‘Pilot Program’’), while 

the Commission considered a 

corresponding Exchange proposal 7 to 

amend its rules to permit EPs to choose 

the firms from whom they will accept 

Directed Orders, while providing 

complete anonymity of the firm entering 

a Directed Order. 

On June 20, 2006, the Exchange 

proposed extending the effective date of 

the rule governing its Directed Order 

process on BOX from June 30, 2006 to 

September 30, 2006,8 while the 

Commission continued to consider the 

corresponding Exchange proposal. 

On September 11, 2006; January 16, 

2007; July 2, 2007; and January 18, 2008 

the Exchange proposed extending the 

effective date of the amended rule 

governing the Directed Order process on 

BOX from September 30, 2006 until 

January 31, 2007; 9 from January 31,